IN THE CASE OF: BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150012440 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: 1 September 2016 DOCKET NUMBER: AR20150012440 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: 1 September 2016 DOCKET NUMBER: AR20150012440 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 undesirable discharge to a general, under honorable conditions discharge. 2. The applicant states that he was discharged for the convenience of the government. He adds that an upgrade of his discharge will enhance his life. 3. The applicant provides no additional documentary evidence in support of his application. 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 4 December 1964 for a period of 4 years. Upon completion of basic combat training at Fort Jackson, SC, he was reassigned to another unit on the installation for advanced individual training. He was advanced to private (E-2) on 4 April 1965. 3. On 19 April 1965, he accepted nonjudicial punishment for absenting himself from his unit from 17 April to 18 April 1965. 4. On 14 May 1965, he departed Fort Jackson for reassignment to Fort Dix, NJ. 5. Headquarters, Special Troops Regiment, Fort George G. Meade, MD (FGGM), Special Court-Martial Order Number 988, dated 8 December 1965, shows the applicant was tried by a special court-martial on 2 December 1965. a. He was found guilty of violation of the Uniform Code of Military Justice, Article 86, for absenting himself from his organization from 15 May 1965 to 9 November 1965. b. He was sentenced to be confined at hard labor for 6 months and to forfeit $62 pay per month for 6 months. c. On 8 December 1965, the Special Court-Martial Convening Authority approved the sentence and ordered it executed. d. He was reduced to private (E-1), effective 2 December 1965. 6. Headquarters, Special Troops Regiment, FGGM, Special Court-Martial Order Number 1049, dated 28 December 1965, shows the unexecuted portion of the sentence to confinement at hard labor for 6 months was suspended for 5 months, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence was to be remitted without further action. 7. An Individual Statement of Waiver, dated 29 December 1965, shows the applicant acknowledged that he was notified by his commander that he was being recommended for discharge under the provisions of (UP) Army Regulation (AR) 635-208 for unfitness prior to the expiration of his term of service. a. He also acknowledged that the commander advised him of the basis for the separation action recommended and that he was recommending issuance of an Undesirable Discharge Certificate. The commander also advised him of his rights and the separation procedures involved. b. The applicant waived his right to a hearing before a board of officers and he indicated that did not desire counsel. He elected to submit written statements in his own behalf, but that such statements be deferred for submission at a later date at his option, if his case was referred to a board of officers. c. The applicant acknowledged he understood that if an undesirable discharge was issued it would be under conditions other than honorable, that as a result of such discharge he may be deprived of many or all rights as a veteran under both Federal and State laws, and he may expect to encounter substantial prejudice in civilian life in the event of a less than honorable discharge. d. The applicant and commander placed their signatures on the document. 8. On 20 January 1966, the applicant was evaluated at Mental Hygiene Consultation Service, FGGM, Fort Dix, NJ. A psychiatrist examined the applicant and reviewed information in his medical records. a. He found the applicant had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. He also found that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in separation board proceedings. b. He diagnosed the applicant with passive-aggressive personality, manifested by a longstanding history of acting out behavior in civilian life prior to entering the service, poor adjustment in school, poor academic achievement, frequent absence without leave, and unresolved familial conflicts. He noted that the applicant's impairment for further military duty was "marked." c. The doctor recommended the applicant be separated from service under the appropriate administrative regulation. 9. On 21 January 1966, the applicant's company commander recommended that the applicant be discharged UP AR 635-208 prior to the expiration of his term of service for unfitness with an Undesirable Discharge Certificate. a. The company commander noted the applicant was absent without leave on two separate occasions for a total of 179 days, he was tried by special court-martial, and psychiatrically evaluated with a recommendation that he be administratively separated. b. The commander also noted the applicant's lack of motivation for continued service and his inability to become a satisfactory Soldier. He categorized his conduct and efficiency as unsatisfactory. 10. The chain of command recommended approval of the applicant's separation with an Undesirable Discharge Certificate. 11. On 11 February 1966, the separation authority approved the applicant's discharge by reason of unfitness and directed issuance of an Undesirable Discharge Certificate. 12. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 17 March 1966 UP AR 635-208 and his service was characterized as under conditions other than honorable. He had completed 6 months and 13 days of net active service this period. Item 32 (Remarks) shows he had a total of 271 days of lost time. 13. A review of the applicant's military personnel records failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations. REFERENCES: 1. AR 635-208, in effect at the time, provides procedures and guidance for eliminating enlisted personnel having undesirable habits and traits of character. An individual was subject to separation when it was determined that an individual's military record was characterized by frequent incidents of a discreditable nature with civil or military authorities or an established pattern of shirking. It also provides that Soldiers may be issued an Honorable or General Discharge Certificate by the separation authority; however, a Soldier discharged for unfitness was normally furnished an Undesirable Discharge Certificate. 2. AR 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 3, paragraph 3-7b, provides that an under honorable conditions discharge is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant contends his undesirable discharge should be upgraded because it would enhance his life. 2. The applicant's discharge UP AR 635-208 based on unfitness was administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. Considering all the facts of the case, his separation and the characterization of his service were appropriate and equitable. 3. The evidence of record shows the applicant received nonjudicial punishment, he was convicted by a special court-martial, and he had 271 days of time lost. Moreover, he completed less than 7 months of his 4-year active duty obligation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012440 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012440 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2