BOARD DATE: 22 August 2017 DOCKET NUMBER: AR20160003337 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: 22 August 2017 DOCKET NUMBER: AR20160003337 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: 22 August 2017 DOCKET NUMBER: AR20160003337 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, the daughter of a deceased former service member (FSM), requests an upgrade of her father's discharge under other than honorable conditions to honorable. 2. The applicant states her father was and always has been a very "honorable" man and he was very proud of his service in the U.S. Army. She would like to honor him for his service and give him the proper dignity he deserves so she may obtain a memorial marker for his grave. 3. The applicant provides: * State of Ohio Office of Vital Statistics Certification of Birth * FSM's State of Georgia Office of Vital Records Georgia Death Certification * FSM's 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. On 6 January 1956 at the age of 18, he enlisted in the Regular Army for a period of 3 years. 3. On or about 8 June 1956, he was assigned to the 3d Company Student Regiment Armor School, Fort Knox, KY. 4. In August 1957, he received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for drunkenness and his conduct and efficiency ratings were "Fair." 5. 3d Student Company School Regiment, U.S. Army Armor School, Orders Number 21, dated 9 August 1957, reduced him to the grade of private (E-2) for misconduct. 6. On 14 October 1957, he was assigned to Company D, 2d Battle Group, 21st Infantry Regiment, Schofield Barracks Area, HI. 7. On 29 October 1957, he reenlisted in the Regular Army for a period of 6 years. 8. In November 1957, he received nonjudicial punishment under the provisions of Article 15 for disobeying a noncommissioned officer. 9. He was absent without leave (AWOL) from 21 August 1958 through 28 August 1958. 10. In November 1958, he received nonjudicial punishment under the provisions of Article 15 for being AWOL for 1 day. Company D, 2d Battle Group, 21st Infantry Regiment, Orders Number 35, dated 12 November 1958, reduced him in grade to private (E-2) for misconduct. 11. On or about 22 March 1959, he received a summary court-martial conviction for stealing U.S. Government property and unlawfully entering a government building with intent to commit a criminal offense. On 1 April 1959, he was sentenced reduction in grade to private (E-1), hard labor for 30 days, and forfeiture of $35.00 pay for 1 month. 12. In April 1959, he received nonjudicial punishment under the provisions of Article 15 for being AWOL for 2 hours. 13. Company E, Infantry School Battalion, Fort Benning, GA, Orders Number 14, dated 28 June 1960, reduced him in grade to private (E-2) for misconduct. 14. He was again AWOL from on or about 7 July 1960 through on or about 27 October 1960. 15. On 4 November 1960, he underwent a psychiatric evaluation that found he was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings. There were no disqualifying mental defects sufficient to warrant disposition through medical channels. He was diagnosed as having inadequate personality. He had a long history of ineffectiveness and was poorly motivated toward remaining in the service. His ability to function in life was hampered by his poor judgement and lack of initiative. The Neuropsychiatric Service Chief recommended his separation from the U.S. Army for unfitness under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) and Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability). 16. On 18 November 1960, he acknowledged he had been counseled and advised by his commander of the basis for the recommended discharge action under the provisions of Army Regulation 635-208. He stated he was afforded the opportunity of representation by military counsel or civilian counsel at his own expense and he declined representation. He waived a hearing by a board of officers and did not desire to submit a statement in his own behalf. He understood he could expect to encounter prejudice in civilian life if he were issued a general discharge. He further understood his discharge would be under conditions other than honorable if he were issued an undesirable discharge. As a result of such a discharge, he could be deprived of many or all rights and benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life. 17 On 25 November 1960, a special court martial for being AWOL from on or about 7 July 1960 to on or about 27 October 1960 sentenced him to confinement and hard labor for 6 months, forfeiture of $40.00 per month for 6 months, and reduction to private (E-1). 17. On 2 December 1960, his unit commander initiated separation action against him for unfitness with the issuance of an undesirable discharge. a. The commander stated: * he was dropped from the rolls as a deserter, absent 103 days until apprehended by the Federal Bureau of Investigation and forcibly returned to military control * the FSM asserted that excessive personal indebtedness, compounded by grossly insufficient pay, had driven him to abandon the Army * he had been AWOL four times, confined once, and convicted by a summary and special court-martial b. He waived his rights to a hearing before a board of officers. c. His commander recommended his elimination from the military service under the provisions of Army Regulation 635-208 because of unfitness and be furnished an Undesirable Discharge Certificate. 18. On 8 December 1960, the Commanding General, U.S.  Army Armor Center, approved waiver of a hearing before a board of officers and directed his discharge from the Army under the provisions of Army Regulation 635-208 with the issuance of an Undesirable Discharge Certificate. 19. On 20 December 1960, he was discharged accordingly. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-208 and assigned separation program number 28B (unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities). He completed 4 years, 5 months, and 24 days of total active service and he accrued 174 days of lost time. His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate. 20. On 6 December 1962, he submitted a letter to the Office of Personnel Operations Enlistment Eligibility Activity in lieu of a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), requesting correction of his undesirable discharge so he could reenter the Army. 21. On 4 January 1963, the Office of Personnel Operations Enlistment Eligibility Activity declined his discharge upgrade since he did not meet the current standards for reenlistment because of his poor military service manifested by time lost, court-martial convictions, and one instance of company punishment. 22. On 2 March 1967, the Army Discharge Review Board determined he was properly discharged and denied his request for a change in his discharge. REFERENCES: 1. Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness. Individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined an individual's military record was characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts. 2. Army Regulation 635-200 (Personnel Separations – General Provisions for Discharge and Release), then in effect, provided for the discharge of enlisted personnel upon expiration of term of enlistment and set forth the general provisions governing the release from active duty of enlisted and inducted persons prior to expiration of their terms of service. a. Paragraph 9 provided that an honorable discharge was a separation with honor. The issuance of an honorable discharge was conditioned upon proper military behavior and proficient and industrious performance of duty, giving due regard to the rank or grade held and the capabilities of the individual concerned. (1) An honorable discharge would be furnished when the individual met the following qualifications: * has conduct ratings of at least "Good" * has efficiency ratings of at least "Fair" * has not been convicted by a general court-martial * has not been convicted more than once by a special court-martial (2) Notwithstanding the foregoing criteria, during the current term of service when disqualifying entries in the individual's service record are outweighed by subsequent honest and faithful service over a greater period of time, an honorable discharge may be furnished. b. Paragraph 10 provided that a general discharge was a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge. A general discharge might be issued if an individual had been convicted of an offense by general court-martial or had been convicted by more than one special court-martial in the current enlistment period or obligated service or any extensions thereof. The decision was discretionary and if there was evidence that the individual's military behavior had been proper over a reasonable period of time subsequent to the conviction(s), he might be considered for an honorable discharge. DISCUSSION: 1. The applicant requests an upgrade of her late father's discharge under other than honorable conditions. 2. The evidence of record shows the FSM had multiple nonjudicial punishments under the provisions of Article 15; he was AWOL four times, totaling lost service time of 174 days; he was confined once for 6 months; and he was convicted by a summary and a special court-martial. 3. There is no evidence indicating he was improperly or unjustly discharged for unfitness under the provisions of Army Regulation 635-208 in effect at the time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003337 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003337 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2