BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20170008434 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: 12 December 2017 DOCKET NUMBER: AR20170008434 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: 12 December 2017 DOCKET NUMBER: AR20170008434 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 under other than honorable conditions discharge to an under honorable conditions (general) discharge. 2. The applicant states, in effect: a. He was a minor when he enlisted in the Army and just a kid when he went to Korea. He had hopes of making the Army a career until his medical papers came back with all kinds of restrictions, such as driving a military vehicle. He had very little sight in one eye and that issue could not be corrected with glasses. b. While in Korea, he served with the unit police and transferred to supply. He was awarded $15.00 for saving the Army money (he included a photograph of him accepting a check). c. Upon his assignment to Fort Hood, TX he was given leave for two weeks. He signed out on leave in December 1963; however, he signed out on a blank sheet as his name was the first name on the sign out sheet. After that, he went home to Ohio. Due to a personality conflict, his sergeant, who was very vindictive, called his mother to tell him to come back as he was not on leave, which then turned into him being absent without leave (AWOL). He was eventually arrested and taken to Fort Knox, KY; he wanted to stay in the Army and didn't get a say in his discharge. d. He is proud of his 23 months of honorable service prior to that incident and believes he was discharged unfairly. e. In 1968, the court restored his birth name after his mother divorced his step-father. f. He is in poor health and would like a discharge upgrade before he passes. 3. Additionally, in a 29 September 2017 email to the Operations Manager, Case Management Division (CMD), Army Review Boards Agency (ARBA), the applicant states the following: a. He signed a DD Form 664 (Serviceman's Statement Concerning Application for Compensation from the Veterans Administration) declining compensation from the Department of Veterans Affairs (VA) because he did not realize he would suffer chronic sinus issues for the rest of his life due to his exposure to chemicals in Korea such as Agent Orange. b. For the last 50 years, he has relied on nasal sprays and steroids just to breathe. The doctors in Korea could not figure out his problem; however, several doctors over the years suggest that it's due to his exposure in Korea. 4. The applicant provides: * an updated DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 5 May 2017, with a two-page self-authored statement * a letter to his Member of Congress, dated 10 June 2017 * DA Form 1049 (Personnel Action), dated 12 February 1962 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 21 August 1964, with associated DD Form 215 (Correction to DD Form 214) dated 17 September 1964 * DA Form 664, dated 21 August 1964 * a court document decreeing his name change, filed on 31 May 1968 * three photographs 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 6 February 1962 and held military occupational specialty 765.10 (Signal Supply and Parts Specialist). At the time of his enlistment, he was 17 years old and his mother signed a DD Form 373 (Consent, Declaration of Parent or Legal Guardian) so he could enlist. 3. His DA Form 24 (Service Record) shows in: a. Section 2 (Chronological Record of Military Service), his assignments included Company A, 4th Signal Battalion, in the Republic of Korea, followed by the 542nd Signal Company at Fort Hood, TX. b. Section 5 (Service Outside Continental United States), he served in the Republic of Korea from on or about 26 June 1962 through on or about 25 July 1963, a period of 1 year and 1 month. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the following offenses: a. On 9 April 1963, while assigned in the Republic of Korea, for willfully uttering a bad check on or about 7 December 1962. b. On 31 May 1963, while assigned in the Republic of Korea, for failing to go to his appointed place of duty on or about 29 May 1963. He appealed his punishment; however, his appeal was denied on or about 1 June 1963. 5. Special Court-Martial Order Number 839, issued by Headquarters, Special Troops, U.S. Army Armor Center, Fort Knox, KY on 6 August 1964, shows the applicant pleaded guilty and was found guilty of two specifications of violating Article 86 of the UCMJ: a. On or about 2 December 1963, without authority, he went AWOL from his unit, to wit: 542nd Signal Company, Fort Hood, TX, and did remain so through on or about 26 February 1964. b. On or about 26 March 1964, without authority, he went AWOL from his unit, to wit: Special Processing Detachment, Fort Knox, KY, and did remain so through on or about 19 June 1964. c. His sentence was adjudged on 31 July 1964; his sentence consisted of confinement at hard labor for six months, forfeiture of $55.00 pay per month for six months, and his reduction in rank/grade to private (PV1)/E-1. The sentence was approved on 6 August 1964, with confinement at the U.S. Army Armor Stockade, Fort Knox. 6. Special Court-Martial Number 876, issued by Headquarters, Special Troops, U.S. Army Armor Center, Fort Knox, on 13 August 1964, remitted the unexecuted portion of his confinement and forfeiture of pay effective the date of his administrative discharge. 7. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding the processing of his discharge. However, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), signed by the applicant, that identifies the authority and reason for his discharge. 8. The applicant was discharged on 21 August 1964. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-208 (Undesirable Habits or Traits of Character, Enlisted Men, Discharge), Separation Program Number 28B, by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities, with an under other than honorable conditions characterization of service. It further shows: * he was issued an Undesirable Discharge Certificate * he completed 1 year, 10 months, and 18 days of total active service * he completed 1 year and 1 month of foreign and/or sea service in U.S. Army Pacific (USARPAC - Korea) * he had 242 days of lost time during the periods 2 December 1963 through 4 March 1964 and 26 March 1964 through 20 August 1964 9. The applicant's medical records were not available for review. However, there is no documentation in the available records that shows he suffered from any medical condition, to include the effects of exposure to Agent Orange, which warranted any separation other than the administrative discharge he received. 10. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB determined he was properly and equitably discharged and denied his request on 23 August 1982. 11. The applicant provides: a. A DA Form 1049, dated 12 February 1962, from the Optometry Clinic, Ireland Army Hospital, Fort Knox, subject: Change of Physical Profile, which shows the applicant was given a permanent profile for poor vision in his right eye that was uncorrectable with glasses. b. DD Form 664, dated 21 August 1964, which the applicant signed and dated after checking the box attesting to his understanding that despite his decision not to file an application with the VA for compensation, he could do so at a later date. (The applicant's intent in providing this evidence is unclear.) c. A State of Ohio, Pauling County Probate Court document, filed 31 May 1968, which granted the applicant a change in his last name from "Hxxxx" to "Bxxx." This name change was granted by the court on 29 May 1968. d. Three undated and unmarked photographs, assumed to be of the applicant in military uniform. REFERENCES: 1. Army Regulation 15-185 (ABMCR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, governed general policies and procedures for the separation of enlisted personnel, including appropriate service characterizations. This regulation provided 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 635-208, then in effect, set forth the policy for administrative separation for unfitness. Paragraph 3 of the regulation provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: a) frequent incidents of a discreditable nature with civil or military authorities, b) sexual perversion, c) drug addiction, d) an established pattern of shirking, and/or e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. DISCUSSION: 1. The applicant contends he was young and was treated unfairly, and an error involving his leave led to his misconduct. There is no evidence in the available records indicating his chain of command was arbitrary or capricious in processing his leave, leading to his misconduct that resulted in Article 15s and a special court-martial. 2. Additionally, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations. 3. The applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army. However, his record contains a DD Form 214 that shows he was discharged on 21 August 1964 under the provisions of Army Regulation 635-208 by reason of unfitness (frequent involvement in incidents of a discreditable nature with civil or military authorities). Accordingly, his service was characterized as under other than honorable conditions. 4. The applicant also contends that he suffers from chronic sinus issues that were caused by his exposure to chemicals, such as Agent Orange, while assigned in the Republic of Korea. The available records are void of medical documentation that shows he suffers from any chronic sinus issues or other related medical conditions that resulted from his period of active duty service. 5. In the absence of evidence to the contrary, it must be presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. It must also be presumed that the type of discharge directed and the reason for separation were appropriate considering all the facts of the case and his overall record of military service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170008434 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170008434 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2