BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150016803 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: 16 March 2017 DOCKET NUMBER: AR20150016803 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: 16 March 2017 DOCKET NUMBER: AR20150016803 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 his under other than honorable conditions discharge be upgraded to an under honorable conditions (general) discharge. 2. The applicant states, in effect, he is requesting the upgrade because his conduct during his enlistment was good. He only had one episode of misconduct during the two year period. He was honorably discharged on 12 December 1968. He asks the Board to look at all his service, not just one instance. 3. The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), for the periods ending 12 December 1968 and 9 April 1970. 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 21 March 1968 at 17 years of age. He entered active duty, completed his initial entry training, and was awarded military occupational specialty 63B (Wheel Vehicle Mechanic). 3. A DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 20 May 1968, shows the applicant received an Article 15 [nonjudicial punishment (NJP)] for violating Article 86 of the UCMJ; specifically, for being absent without leave (AWOL) from on or about 12 May 1968 to on or about 19 May 1968. 4. The applicant was honorably discharged on 12 December 1968. His DD Form 214 shows he was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the purpose of immediate reenlistment. 5. The applicant reenlisted in the Regular Army on 13 December 1968. 6. Special Court-Martial Order Number 352, issued by Headquarters, Special Troops, Fort Campbell, KY, on 19 May 1969, shows the applicant plead guilty and was found guilty of violating Article 86 of the UCMJ. Specifically, he was convicted of being AWOL from on or about 24 January 1969 to on or about 3 March 1969, and from on or about 7 March 1969 to on or about 26 April 1969. 7. A DA Form 2627-1, dated 23 October 1969, shows the applicant received NJP for violating Article 86 of the UCMJ; specifically, for failing to be at his appointed place of duty on 21 October 1969. 8. A DA Form 2627-1, dated 3 November 1969, shows the applicant received NJP for violating Article 134 of the UCMJ, specifically for breaking restriction to the company area on 31 October 1969. 9. A DA Form 2627-1, dated 12 January 1970, shows the applicant received NJP for violating Article 86 of the UCMJ, specifically for failing to be at his appointed place of duty on 11 January 1970. 10. The applicant's company commander notified him on 15 January 1970 that he was recommending the applicant for discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), because of frequent incidents of a discreditable nature with military authorities. The company commander recommended the applicant receive an undesirable discharge. 11. The applicant underwent a mental status evaluation for separation on 22 January 1970. The psychiatrist found no psychiatric disease, and cleared him for any administrative action deemed appropriate by command. 12. The applicant consulted with legal counsel on 16 March 1970 and was advised of the basis for the contemplated action, to accomplish his separation for unfitness, under the provisions of Army regulation 635-212. a. He waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel. b. He indicated he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him. He further understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life. c. He understood that he may, up until the date the discharge authority orders, directs or approves his discharge, withdraw the waiver and request that a board of officers hear his case. d. He did not submit statements in his own behalf. 13. The applicant's brigade commander recommended his discharge from the Army on 23 March 1970, under the provision of Army Regulation 635-212, and that he be furnished a General Discharge Certificate. The brigade commander's recommendation was returned by the assistant adjutant, who informed the brigade commander that Undesirable Discharge Certificates are given to individuals separated for unfitness. The adjutant prepared a memorandum on 30 March 1970, stating the applicant was being recommended for a general discharge because there was no local attempt at rehabilitation. 14. The approval authority waived rehabilitation requirements and approved an undesirable discharge on 6 April 1970. 15. The applicant was discharged on 9 April 1970, under the provisions of Army Regulation 635-212, by reason of unfitness. His DD Form 214 shows his service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate. 16. There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. The regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. DISCUSSION: 1. The applicant's request that his under other than honorable conditions discharge be upgraded to an under honorable conditions (general) discharge was carefully considered. 2. An under honorable conditions (general) discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. The evidence of record shows the applicant enlisted in the Regular Army at 17 years of age. He received NJP one time during his first enlistment that ended on 12 December 1968. He received UCMJ three times and pled guilty to two special court-martial charges during his second enlistment. He was discharged for unfitness at the age of 18 years old. 4. The applicant's brigade commander recommended that he receive an under honorable conditions (general) discharge. However, after considering the applicant's misconduct, the separation authority approved his separation and directed that he receive an undesirable discharge. It is presumed that the separation authority determined his overall record of service did not rise to the level required for any characterization of service other than the characterization he received. 5. In the absence of evidence to the contrary, it is presumed the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the applicant's rights were fully protected throughout the separation process. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014082 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016803 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2