BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160002930 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: 10 October 2017 DOCKET NUMBER: AR20160002930 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: 10 October 2017 DOCKET NUMBER: AR20160002930 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, in effect, an upgrade of the characterization of his service. 2. The applicant states: a. He was an outstanding trainee while attending Advanced Individual Training (AIT) at Fort Benning, GA. After the company commander changed, the applicant's pay stopped. The applicant claims he did not receive pay for 6 months. He went to see the Inspector General (IG) who told him to see his commanding officer (CO). When he went to see the CO he was told to leave his office. He went to see the chaplain; however, the chaplain told him to go see his CO. He went back to see his CO, who once again told him to get out of his office. b. He eventually went to Finance. Finance told him they had no record of him being in the Army. His spouse was expecting a baby but he received no pay, no insurance, and had no money to buy food for his spouse. Since he was receiving no help from the Army, he went home and got a job. 3. The applicant provides a statement from his spouse. 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 24 December 1963. 3. His record contains a DD Form 458 (Charge Sheet), dated 1 July 1964, which shows court-martial charges were preferred against him on 18 July 1964 for, without proper authority, absenting himself from his unit for the period of on or about 9 June 1964 through on or about 25 June 1964. 4. His record contains DA Form 26 (Record of Court Martial Conviction), which notes Summary Court-Martial Order Number 16 convicted him of being absent without leave (AWOL) for the period 9 through 25 June 1964. The applicant was sentenced to restriction to the battalion area for 30 days, forfeiture of $55.00 per month for 1 month, and reduction to the rank/grade of private (PVT)/E-1. The sentence was adjudged and approved on 23 July 1964. 5. Special Court-Martial Order Number 123 shows the applicant pled guilty and was convicted by a special court-martial at Fort Benning, GA, of without proper authority, absenting himself from his unit for the period of on or about 11 August 1964 through on or about 31 August 1964. The applicant was sentenced to reduction to the rank/grade of PVT/E-1, confinement at hard labor for 6 months and forfeiture of $55.00 per month for 6 months. The sentence was adjudged on 12 September 1964 and approved on 18 September 1964. 6. Special Court-Martial Order Number 787 shows the applicant pled guilty and was convicted by a special court-martial at Fort Knox, KY, of without proper authority, absenting himself from his organization for the period of on or about 19 February 1965 through on or about 4 May 1965. The applicant was sentenced to reduction to the lowest enlisted grade, confinement at hard labor for 6 months and forfeiture of $50.00 per month for 6 months. The sentence was adjudged on 2 June 1965 and approved on 14 June 1965. 7. His record does not contain a discharge packet outlining the circumstances surrounding his discharge. However, the record does contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which shows: a. On 26 June 1965, 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 the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and an Undesirable Discharge Certificate. d. He completed 10 months and 13 days of total active service with 231 days of lost time. e. No foreign service is recorded on this document. 8. 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. 9. The applicant provides a statement from his spouse who claims, in effect, that the applicant was not receiving pay. They were expecting a baby, but they had no insurance and she did not have what she needed or what an expecting mother should have. When the baby was born, she and the baby almost died. It appears the on-call doctor did not care. Without insurance, there was no way for him to be paid. The doctor told them their son would not live overnight; however, with the grace of God, he lived, but not in good health. 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 (Personnel Separations - General Provisions for Discharge and Release), in effect at the time, provides: a. 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. 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.  4. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the applicant. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. His record is void of the complete facts and circumstances that led to his discharge. However, his record does contain three court-martial convictions for multiple periods of AWOL. In addition, 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. The applicant's contentions and his wife's statements are noted. It is reasonable to presume that he was afforded the opportunity to provide this information to his chain of command and at each of his court-martial proceedings. 3. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002930 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002930 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2