IN THE CASE OF: BOARD DATE: 23 June 2016 DOCKET NUMBER: AR20150011764 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: 23 June 2016 DOCKET NUMBER: AR20150011764 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: 23 June 2016 DOCKET NUMBER: AR20150011764 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, through his Member of Congress, an upgrade of his under other than honorable conditions discharge. 2. The applicant states his behavior was that of a teenager and an undisciplined person. He did not think his behavior would affect him in the future. He is older now and he recognizes the errors of his past. He does not think or act the way he used to. He has a stable life and he has been married to the same woman for 20 years. She has seen the changes in him. 3. The applicant does not provide any additional evidence. 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 28 May 1965 and he held military occupational specialty 76A (Supply Clerk). He served in Germany from on or about 16 November 1965 to on or about 3 June 1966. 3. His service records contain evidence he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: * 11 April 1967, being absent without authority on 10 April 1967 * 2 October 1968, failing to go at the time prescribed to his appointed place of duty * 11 October 1968, willfully disobeying a lawful order 4. His records also show he was convicted by special courts-martial on three separate occasions as follows: a. On 27 July 1967, for one specification of being absent without leave (AWOL) from 6 June to 9 July 1967. The court sentenced him to confinement at hard labor for 6 months, forfeiture of $86.00 pay per month for 6 months, and a reduction to the lowest enlisted grade. b. On 1 December 1967, for one specification of AWOL from 10 October to 14 November 1967. The court sentenced him to confinement at hard labor for 6 months and a forfeiture of $85 pay per month for 6 months. c. On 31 January 1969, for one specification of AWOL from 31 December 1968 to 2 January 1969. The court sentenced him to confinement at hard labor for 1 month and a forfeiture of $95 pay per month for 1 month. 5. On 3 January 1969, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness. He recommended an undesirable discharge. 6. On 5 February 1969, the applicant acknowledged receipt of the separation memorandum. He consulted with legal counsel and he was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him. He requested consideration of his case by a board of officers, a personal appearance before a board of officers, and declined making a statement in his own behalf. He acknowledged he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him and as a result of the issuance of an under other than honorable conditions discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws 7. Subsequent to this acknowledgement, his immediate commander initiated separation action against him under the provisions of AR 635-212, by reason of unfitness with an under other than honorable conditions discharge. The immediate commander cited the applicant's frequent incidents of a discreditable nature and complete failure to meet military requirements and discipline. The applicant's intermediate and senior commanders recommended approval of the discharge with the issuance of an undesirable discharge. 8. On 2 April 1969, a board of officers convened at Fort Gordon, GA, to consider if the applicant should be separated, with the applicant and his counsel present. The board of officers found the applicant unfit for further military service and recommended his elimination from the service with the issuance of an undesirable discharge. 9. On 28 April 1969, the separation/convening authority approved the board of officers' findings and recommendations. He ordered the applicant discharged from the service under the provisions of AR 635-212 by reason of unfitness and furnished an Undesirable Discharge Certificate. He was accordingly discharged on 1 May 1969. 10. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of AR 635-212 by reason of unfitness with a separation program number (SPN) of 28B (unfitness). His character of service was under other than honorable conditions. He completed 2 years, 11 months, and 26 days of total active service and he had 338 days of lost time. 11. On 3 January 1978, the Army Discharge Review Board (ADRB) reviewed his discharge and determined he was properly and equitably discharged. The ADRB voted unanimously to deny his petition for an upgrade of his discharge. REFERENCES: 1. AR 635-212, in effect at the time, set forth the policy for administrative separation for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 2. AR 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states 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. DISCUSSION: 1. The applicant's records reveal a disciplinary history which includes at least three instances of NJP, three convictions by courts-martial, and a history of AWOL. Accordingly, his chain of command initiated separation action against him. 2. His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights. The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service. The reason for discharge and the characterization of service were both proper and equitable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011764 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011764 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2