IN THE CASE OF: BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20160003874 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 IN THE CASE OF: BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20160003874 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. IN THE CASE OF: BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20160003874 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 widow of a deceased former service member (FSM), requests an upgrade of her late husband's undesirable discharge to honorable or general under honorable conditions. 2. The applicant states: a. Her late husband's discharge was too severe for the reasons leading to his separation from the Army. He was confined for 5 months without the benefit of counsel, pay, or trial. His discharge should be upgraded based on time served. b. Her late husband spoke of upgrading his military status for many years. He was 17 years old when he enlisted in the Army. He entered the Army under the "buddy plan" and his buddy went to Vietnam after basic training while he remained Stateside. Other mitigating circumstances ensued and he made mistakes along the way. He was confined for a time and discharged. c. After his discharge from the military, he got a job with the Chrysler Corporation, worked for 38 years, and retired with many awards for his service. They married, made a home for her daughter, and had a child of their own. He died on 3 January 2016. In his memory, she would like to better his name and allow their daughters to display a U.S. flag honorably in his name. 3. The applicant provides: * FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * marriage certificate * FSM's death certificate 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 FSM was born on 25 March 1951. 3. He enlisted in the Regular Army at age 17 on 15 April 1968 for a period of 3 years. He completed his training and was awarded military occupational specialty 82C (artillery surveyor). 4. On 11 September 1968, nonjudicial punishment was imposed against him for failing to go to his appointed place of duty at the prescribed time. 5. On 25 November 1968, he was convicted by a special court-martial of being absent without leave (AWOL) from 12 October 1968 to 25 October 1968 (13 days). He was sentenced to confinement at hard labor for 1 month and forfeiture of $50.00 pay per month for 3 months. On 2 December 1968, the convening authority approved the sentence, but suspended confinement at hard labor for 1 month. 6. On 26 March 1969, he was convicted by a special court-martial of being AWOL from 8 January 1969 to 17 January 1969 (9 days) and from 3 February 1969 to 10 March 1969 (36 days). He was sentenced to confinement at hard labor for 6 months and forfeiture of $73.00 pay per month for 6 months. On 3 April 1969, the convening authority approved the sentence. His records show he was confined from 26 March 1969 to 25 April 1969 (31 days). 7. On 27 August 1969, charges were preferred against him for being AWOL from 17 July 1969 to 31 July 1969 (14 days) and from 4 August 1969 to 21 August 1969 (17 days), and escaping from confinement. An undated information data sheet shows he was placed in pre-trial confinement on 21 August 1969. Trial by special court-martial was recommended. 8. On 28 October 1969, discharge proceedings were initiated against him for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). The commander recommended his discharge for the following reasons: * his AWOL periods * his permanent longstanding character and behavior disorder * he could not be rehabilitated to the extent that he would be an effective Soldier * he was a candidate for administrative separation under the provisions of Army Regulation 635-212 9. On 12 November 1969, he underwent a psychiatric evaluation and he was diagnosed with a chronic, severe, inadequate personality manifested by inadequate response to cultural and social demands – severely inadequate and unsuitable for the Army. He was found mentally responsible to distinguish right from wrong and adhere to the right. He had no disqualifying mental defects sufficient to warrant discharge through medical channels. His longstanding character and behavior disorder would tend to exist permanently. 10. On 5 December 1969 after consulting with counsel, he waived his rights and acknowledged he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him. He elected not to make a statement in his own behalf. 11. A 1st indorsement from the Commander, Headquarters, Special Processing Detachment, dated 10 December 1969, subject: Discharge of Personnel for Unfitness under Army Regulation 635-212, states: * the applicant is currently serving a sentence to confinement at hard labor for pretrial confinement * the applicant is presently pending trial by special court-martial, but charges will be dropped upon approval of discharge 12. On 19 December 1969, the separation authority approved the recommendation for separation for unfitness and directed the issuance of an Undesirable Discharge Certificate. 13. His DA Form 20 (Enlisted Qualification Record) shows he was confined from 21 August 1969 to 16 January 1970 (147 days). 14. He was discharged under other than honorable conditions on 16 January 1970 under the provisions of Army Regulation 635-212 and assigned separation program number 28B (unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities). He completed 1 year, 7 months, and 27 days of total active service with 267 days of lost time. 15. On 7 September 1979, the Army Discharge Review Board denied his request for a discharge upgrade to honorable. REFERENCES: 1. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. Paragraph  6a(1) provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate. 2. Army Regulation 635-200 (Active duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. Table 1-12 (Unauthorized Absence and Other Lost Time – Effect on Pay and Allowances) of Department of Defense Financial Management Regulation  7000.14-R, Volume 7A (Military Pay Policy – Active Duty and Reserve Pay), states when a member is absent from duty in military confinement (other than for civil authorities) and: a. is awaiting trial by court-martial or serving a sentence of confinement which did not include a forfeiture of pay, the member is entitled to otherwise proper credits of pay and allowances; and b. is serving a court-martial sentence which includes a forfeiture of pay and allowances, the member is entitled to pay and allowances accruing before the date the sentence was approved by the convening authority and to any unforfeited pay and allowances accruing after that date. DISCUSSION: 1. The applicant contends the FSM was 17 years old when he joined the Army; however, age is not a sufficiently mitigating factor. There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military terms of service. 2. The applicant contends the FSM was confined for 5 months without the benefit of counsel, pay, or trial. 3. The evidence of record shows: a. He was placed in military confinement on 21 August 1969 pending trial by special court-martial for two AWOL periods and for escaping from confinement while serving a sentence to confinement at hard labor for 6 months and forfeiture of $73.00 pay per month for 6 months. b. On 28 October 1969, proceedings were initiated to separate him for unfitness. He consulted with counsel on 5 December 1969 and waived his rights. c. He was released from military confinement and discharged on 16 January 1970. 4. Department of Defense Financial Management Regulation 7000.14-R states that when a member is awaiting trial by court-martial or serving a sentence of confinement that did not include a forfeiture of pay, the member is entitled to otherwise proper credits of pay and allowances. However, when a member is serving a court-martial sentence which includes a forfeiture of pay and allowances, the member is entitled to pay and allowances accruing before the date the sentence was approved by the convening authority and to any unforfeited pay and allowances accruing after that date. 5. The evidence of record shows he was serving a sentence to confinement that included a forfeiture of pay when he escaped and was subsequently placed in pre-trial confinement. 6. His post-service accomplishments were noted. However, good post-service conduct alone is normally not a basis for upgrading a discharge. 7. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so. The characterization of service he received was commensurate with the reason for his discharge. 8. Although the applicant contends her late husband's discharge was too severe for the reasons leading to his separation from the Army, his record of service included one nonjudicial punishment, two special courts-martial convictions, and 267 days of lost 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) AR20160003874 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003874 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2