BOARD DATE: 20 July 2017 DOCKET NUMBER: AR20160001292 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x______ _x______ __x______ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 20 July 2017 DOCKET NUMBER: AR20160001292 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _________x________________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 20 July 2017 DOCKET NUMBER: AR20160001292 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his discharge under other than honorable conditions to honorable. 2. The applicant states: a. He thought he would receive a hardship discharge due to his father's terminal illness and the need to care for him and support his family. His father, despite undergoing chemotherapy for throat cancer, drove from Milwaukee, WI, to Fort Leonard Wood, MO, every 2 weeks until he was discharged. His father met with officials to procure his release; however, he remained incarcerated as the officials deliberated. Upon the applicant's release, he was informed his service characterization could be changed in 6 months if he appealed the decision. b. Due to his family situation, war time, financial hardship, and after meeting with officials regarding an appeal, he was told he got what he got. He felt an appeal was a waste of time and nothing would change. The decision has bothered him for the past 47 years. He felt they didn't really know him. He voluntarily enlisted to serve his country, including volunteering to serve in Vietnam four different times. Despite this isolated incident and personal stress, he worked as a heavy equipment operator, obtained rifle certifications, and served as a squad leader. He has a feeling of pride for the work he completed during his service and he has continued this work as an owner/operator in civilian life. c. He obtained multiple certifications during his voluntary enlistment, including the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), National Defense Service Medal, squad leader, and basic training. He believes the type of discharge he received was unjust due to an isolated incident with another private. d. He claims he was the victim of theft (monies allotted for leave to get married). Fortunately, his platoon gathered monies so he could fly home and get married. During his leave he was informed his father had terminal cancer with 2 years to live and his wife was expecting their first child in 6 months. He returned to base and was informed by friends of a suspected individual who stole the money sent by his family for his wedding. He lost his temper, as he was under extreme stress related to the news of his father's cancer and financial issues due to his medical bills and supporting his pregnant wife. Upon his return to base he was involved in an altercation with the suspected thief. He was subsequently arrested, received a special court-martial conviction, and was sentenced to confinement in the stockade for 72 days. He was ultimately discharged under other than honorable conditions. 3. The applicant provides: * self-authored statement * letter * 13 pages of his father's medical records * 11 pages of news clippings * various business cards * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 15 November 1967 at the age of 17 years and 11 months. 3. His records contain an FLW Form 106 (Consultation Request), dated 10 April 1968, in which his commanding officer requested a psychiatric evaluation of the applicant. His commander stated the applicant refused to accept authority and had stated he would not obey orders despite the unit's counseling and explanation of the need for authority in the U.S. Army. The applicant was informed as to what punitive measures could be enforced; however, all attempts at counseling the applicant had failed. 4. The evidence shows the applicant was convicted by a special court-martial at Fort Leonard Wood, MO, of the following specifications: * being disorderly in his barracks on or about 24 March 1968 * unlawfully striking Private W____ on the head with his hand on or about 24 March 1968 * failing to obey a lawful order on or about 25 March 1968 * failing to go to his appointed place of duty on or about 25 March 1968 * failing to go to his prescribed place of duty on or about 25 March 1968 * going from his appointed place of duty without proper authority on or about 25 March 1968 5. The applicant was sentenced to reduction in grade to private/E-1, forfeiture of $40.00 per month for 6 months, and confinement at hard labor for 6 months. The sentence was adjudged on 17 April 1968, approved on 22 April 1968, and he was confined to the Fort Leonard Wood, MO, post stockade. 6. His records contain an FLW Form 107-R (Report of Psychiatric Evaluation), dated 23 April 1968, which notes the applicant received a psychiatric evaluation on 22 April 1968. He was diagnosed with chronic, severe asocial type sociopathic personality. a. The condition represents a character and behavioral disorder described in Army Regulation 40-401 (Armed Forces Medical Diagnosis Nomenclature and Statistical Classification). The disorder was not medically disqualifying but should be considered in his further training or administrative disposition by the unit commander. b. The psychiatrist further noted the applicant enlisted in order to get out of parole. He had been on parole for several civilian counts. The applicant displayed no impulse control, had difficulty dealing with authority figures, and had difficulty when placed in a structured situation. c. Psychiatrically, there were no overt psychotic symptoms present; however, he was very poorly motivated to make adjustments necessary for success in the military. The applicant was psychiatrically cleared for any administrative decision deemed appropriate by the command. 7. His records contain a letter from his parents to the Secretary of Defense, dated 24 April 1968. His parents noted the applicant came out of a school for boys due to theft, burglary, and theft of an automobile. He was advised that he would be released from parole if he enlisted in the service. He trained for 4 months, then he was told he could not go overseas. His parents claimed this was the reason for his difficulties. 8. On 15 May 1968, the applicant underwent another psychiatric evaluation. His records contain an FLW Form 107-R, dated 16 May 1968, in which he was diagnosed with a chronic, severe aggressive-type passive-aggressive personality. The psychiatrist found: a. The applicant had no disqualifying physical or mental defects sufficient to warrant disposition through medical channels. b. The applicant was mentally responsible to distinguish right from wrong and to adhere to the right and had the mental capacity to understand and participate in board proceedings. c. The condition was not amenable to hospitalization, treatment, disciplinary action, transfer to another organization or station, or reclassification to another type of duty. d. The psychiatrist noted the applicant enlisted at age 17, probably fraudulently. The applicant stated a friend signed his mother's signature to the enlistment papers. From his past history, it was apparent he had been having difficulty with authority figures since early childhood. He started school at age 5 with marked separation anxiety. He ran away from school every day and had to be brought back by his mother. His school years were marked by his constant refusal to accept and conform to the standards and discipline in school. Many fights with teachers and peers were recorded during this period. He finally left school in the eighth grade at age 15, began having trouble with civilian authorities, and spent 5 1/2 months in a correctional school. On leaving school he began working with his father in his father's wrecking company. During basic training he married a girl who was pregnant. On returning he began having difficulties with his unit. He had many fights with peers, and after the last fight he was placed in the stockade for pre-trial confinement. e. The psychiatrist recommended making no further attempt at rehabilitation of the applicant since it was believed that he was of little or no use to the service and further attempts would be of no avail. He further recommended separation of the applicant under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), paragraph 6b, for unsuitability due to a personality defect. 9. On 17 May 1968, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-212. 10. On 17 May 1968, the applicant consulted with legal counsel who advised him of the basis for the contemplated separation action for unfitness and of the procedures and rights available to him. He acknowledged he understood that if he were issued an undesirable discharge he could expect to encounter considerable prejudice in civilian life and he could be ineligible for many or all benefits as a veteran under Federal and State laws. He waived consideration of his case by a board of officers, representation by counsel, and declined to submit a statement on his own behalf. 11. His chain of command recommended his discharge from the military under the provisions of Army Regulation 635-212 for unfitness with an undesirable discharge. His discharge was recommended because of traits of character manifested by repeated disobedience of orders and aggressive reaction to discipline and authority. During the period 15 November 1967 to 17 May 1968, the applicant had been assigned to various duty assignments in six different units commensurate with his training and ability. His performance of duty in his present unit was unsatisfactory. Elimination for unsuitability was not considered appropriate. The applicant's performance was characterized by intentional disobedience of orders and by behavior rendering him repeatedly subject to punitive action. Additionally, his behavior was not due to an incapacity to become a satisfactory Soldier within the meaning of unsuitability. 12. On 5 June 1968, the separation authority approved the recommendation for discharge from the service under the provisions of Army Regulation 635-212 for unfitness and directed the issuance of an undesirable discharge. 13. On 7 June 1968, he was issued an undesirable discharge under the provisions of Army Regulation 635-212 with separation program number 28B (unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities). His service was characterized as under other than honorable conditions. His DD Form 214 shows he completed a total of 4 months and 13 days of active military service with 72 days of lost time due to confinement. His DD Form 214 also shows he was awarded the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14). 14. His records are void of documentation which indicates he: * would receive a hardship discharge * voluntarily enlisted to serve in the Republic of Vietnam four times * obtained any rifle certifications other than Sharpshooter with the M-14 rifle * was ever a squad leader * was the victim of theft 15. The applicant provided: a. A letter from an attorney who states he has known the applicant since 1984 and has represented him and his companies on a periodic basis. He finds the applicant to be most trustworthy and would never hesitate to do business with him or to recommend him to anyone else. b. Magazine articles representing Reynolds Wrecking Company. c. A portion of his father's medical records which states his father had a biopsy in November 1969 and he was found to have carcinoma of the larynx in December 1969. d. A self-authored statement in which the applicant claims he suffered from extreme anguish during his enlistment. He claims he came home in February 1968 to marry his wife and was informed his father had been diagnosed with terminal throat cancer. Prior to coming home, the money his parents sent for air fare was taken from his foot locker. He returned to hear suspicions of who the suspected thief was and he confronted the individual, which resulted in a fight. He claims he was young, immature and under duress throughout his enlistment. However, since his discharge, he has been a productive member of society in business for over 40 years. He has been married for over 47 years and raised four successful intelligent children. His daughters were the first in his family dating back four generations to obtain secondary educations. He feels an injustice was made when he was discharged from the Army and the decision has weighed heavily on his soul. He struggled for many years; however, despite these obstacles he feels he succeeded in life both personally and professionally. 16. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 17. On 1 June 2017, an advisory opinion was obtained from the Army Review Boards Agency Senior Medical Advisor, who stated that based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. The advisory official reviewed the applicant's available service records and concluded the applicant's medical conditions were duly considered during medical separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in his case. 18. The applicant was provided a copy of the advisory opinion for review and comment. He did not respond. REFERENCES: 1. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a stated an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The evidence of record shows the applicant was discharged for unfitness under the provisions of Army Regulation 635-212. His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier. 2. His records reveal a disciplinary history that includes conviction by court-martial. Accordingly, his chain of command recommended his elimination from the Army. His discharge was processed in accordance with applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process. The characterization of service for this type of discharge is normally undesirable and the applicant was made aware of this prior to his discharge. Further, his discharge accurately reflects his overall record of service. 3. While the applicant's post-service conduct is noted, post-service conduct alone is not normally a basis for upgrading a discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001292 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001292 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2