IN THE CASE OF: BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150018159 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: 13 April 2017 DOCKET NUMBER: AR20150018159 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: 13 April 2017 DOCKET NUMBER: AR20150018159 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 character of service from under other than honorable conditions to honorable. 2. The applicant states, in effect, he believes he sustained an injury during his military service and that his service was honorable. He has several problems and needs help. He has heart problems and believes that veterans like himself should receive Department of Veterans Affairs (VA) benefits. The applicant states he received a letter from President Johnson, which authorized an upgrade of his discharge to honorable. His record should contain documents verifying that President Johnson upgraded his discharge from undesirable to honorable. 3. The applicant provides a VA Form 21-0958 (Notice of Disagreement), dated 1 October 2015. 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. After having previous enlisted service, the applicant enlisted in the Regular Army on 19 November 1963. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 1 July 1964 for driving an unregistered privately owned vehicle in defiance of Post regulations and being in possession of an altered military identification card. 4. Special Court-Martial Order Number 78, published by U.S. Army Artillery and Missile Center, Fort Sill, OK, on 26 October 1964 shows the applicant was tried and arraigned by a special court-martial. a. The court convicted him of being absent without leave (AWOL) from on or about 22 August 1964 until on or about 10 September 1964 and being AWOL from on or about 15 September 1964 until on or about 26 September 1964. b. He was sentenced to confinement at hard labor for 3 months and to forfeit $25.00 per month for 3 months. The sentence was adjudged on 22 October 1964 and approved on 26 October 1964. 5. His record does not contain a discharge packet outlining the circumstance surrounding his discharge. However, the record does contain a duly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge, which shows: a. On 20 November 1964, the applicant was discharged under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness), with the separation program designator code (SPN) 28B. b. His character of service was recorded as under other than honorable conditions. c. He received an Undesirable Discharge Certificate. d. No foreign service is recorded on this document. 6. The applicant's records do not contain and he did not provide any evidence to show President Lyndon Johnson sent him a letter authorizing an upgrade of his characterization of service to honorable. However, his record does contain the following presidential correspondence: a. The applicant wrote a letter to President Johnson postdated 28 July 1965. The applicant's letter states: Dear Mr. President, I am writing for a little advice I am wondering if you could help me. You see I was in the [Regular] Army… I started having trouble with my wife. She left me and took everything I had anyway I couldn't cope with it so I went AWOL from the Army and later spent 60 days in the stockade. I got a 208 discharge. At the time I thought that was best. But when I finally got my senses I realized that I made a big mistake. Anyway I want to go back in the Army for I like[d] it very much. I hope that you can help me or give me [some] advice on what to do. I sure hate to bother you. But I didn't know what or who to find out from. Sir I would sure like to hurry up and go back in. Thank you very much for your time. I sure hope you can do something for me. b. Lieutenant General JKW responded to the applicant in a letter dated, 19 August 1965. The letter states: Dear [Applicant]: The President has asked me to reply to your letter to him concerning your desire to reenlist in the Regular Army. It is gratifying to the President to know of your desire to serve your country by re-entering the Army and at the same time regain the prestige which you feel you lost during your previous term of service. The Department of the Army regulations provide deserving individuals, who have discharges similar to yours, an opportunity to be considered for enlistment or reenlistment in the Regular Army after a period of two years has elapsed since discharge. If you desire to reenlist in the Regular Army, it is suggested that you contact the Commanding Officer of the nearest United States Army Recruiting Station on or after 20 November 1966 to determine the requirements for resubmission of your request. Regardless of the final decision, your tender of service and patriotic desire are certainly appreciated. 7. There is no indication that the applicant applied to the Army Discharge Review Board to request an upgrade of his discharge within that Board's 15-year statute of limitations. 8. The applicant provided a VA Form 21-0958, dated 1 October 2015, wherein he states, in effect, he had several problems during the period of his service. President Johnson amended his discharge and made it honorable. President Johnson stated he could go back into the service because of his health problems. He decided not to rejoin the military. He was unaware of all the injuries he was accruing from Agent Orange-Blue-Purple and other cleaning solvents. His conditions are life threatening and he is unable to work. He feels that someone should do the right thing due to all his complications from service activity. He received an honorary discharge from President Johnson but his house burned down and his discharge from President Johnson was in the house. He hopes someone will do the right thing, he served his country, got hurt, and has paid for it ever since. REFERENCES: 1. Army Regulation 635-208, then in effect, established policy and provided procedures and guidance for the prompt elimination of enlisted personnel who are determined to be unfit for further military service. a. Paragraph 2 states action will be taken under this regulation only when it is clearly established that: (1) despite reasonable attempts to rehabilitate or develop the individual as a satisfactory Soldier, further effort is unlikely to succeed, or (2) rehabilitation is impracticable, as in cases of confirmed drug addiction, or when the medical and/or personal history record indicate that the individual is not amenable to rehabilitation measures, and (3) disposition under other regulations is inappropriate. b. Paragraph 3 states individuals will be discharged by reason of unfitness with an Undesirable Discharge Certificate, unless the particular circumstances in a given case warrant a general or honorable discharge, when it has been determined that an individual's military record is characterized by one or more of the following: (1) 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 upon, a child; and other indecent acts or offenses; (3) drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; (4) an established pattern for shirking; and (5) an established pattern showing dishonorable failure to pay just debts. 2. Army Regulation 635-5 (Separation Documents), in effect at the time of the applicant's discharge, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214. At the time of the applicant's separation, it stated, that the SPN code of 28B was the appropriate code to assign to Soldiers separated 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) 3. Army Regulation 635-200 (Enlisted Active Duty Administrative Separations), 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. 4. Army Regulation 635-200, paragraph 3-7b, provides 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.  DISCUSSION: 1. His record is void of the complete facts and circumstances that led to his discharge. However, his record does contain one instance of NJP and a court-martial conviction for multiple periods of AWOL which led to frequent involvement in incidents [AWOL] of a discreditable nature with military authorities. Additionally, his DD Form 214 shows he was discharged under the provisions of Army Regulation 635-208 and he received an under other than honorable conditions characterizations of service. At the time of his service, an undesirable discharge was considered appropriate for discharges under the provisions of Army Regulation 635-208. 2. There is no evidence of record and he has not provided any evidence that shows he was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that his rights were not fully protected throughout the separation process. Absent such evidence, regularity must be presumed in this case. 3. Based on his overall record of service, he clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct appears to have rendered his service unsatisfactory in the eyes of his commander. 4. Additionally, his record does not contain nor did he provide evidence to show President Johnson authorized an upgrade of his discharge to honorable. By letter he did request assistance from President Johnson and he received a written response informing him he had to wait 2 years from his date of separation before he could reenlist. There is no evidence in his record showing he followed this advice. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018159 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018159 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2