BOARD DATE: 16 January 2018 DOCKET NUMBER: AR20160004700 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 January 2018 DOCKET NUMBER: AR20160004700 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 January 2018 DOCKET NUMBER: AR20160004700 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 his under other than honorable conditions discharge. 2. The applicant states he has paid back his reenlistment bonus. He sent a cashier's check in the amount of $800.00 in settlement of the balance he owed on the judgment against him. He further states he is in need of medical services offered by the Department of Veterans Affairs (VA). 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 6 November 1963 * DD Form 258A (Undesirable Discharge Certificate) * letters from the U.S. Department of Justice pertaining to a debt to the U.S. Government * a 3-page document from the Social Security Administration pertaining to his social security benefits 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. Prior to the period of service under review the applicant served honorably in the Regular Army (RA) from 18 February 1958 to 7 November 1960. He was issued a DD form 214 for his first period of active service that shows he was entitled to a reenlistment bonus. 3. On 8 November 1960, he reenlisted in the RA for a period of 6 years. The applicant's DA Form 24 (Service Record) shows he was absent without leave (AWOL) from 1 June to 22 June 1961. On 28 June 1961, the applicant was found guilty by a summary court-martial of this period of AWOL. 4. The applicant's DA Form 24 also shows he was AWOL during the following periods: * 8-9 July 1962 * 8-9 July 1963 * 15 July-5 August 1963 5. On 6 August 1963, he was placed in confinement. The applicant appeared before the Post Stockade Evaluation Board on 5 September 1963, for the purpose of being classified restorable or non-restorable. The Report of Proceedings indicates the applicant's response to the Stockade Restoration Program was unsatisfactory and motivation for return to duty appeared to be poor. The Board found the applicant potentially non-restorable and recommended his separation from the service. 6. The applicant was found guilty by a special court-martial on 12 September 1963, of being AWOL from 8 July to 10 July 1963 and from 15 July to 6 August 1963. 7. The applicant was notified by his commanding officer on 15 October 1963 that he was recommending his discharge under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) for unfitness. He was advised of his privilege to a hearing before a board of officers, to waive his privilege and submit written statements in his own behalf, or to waive both of the above privileges. The applicant also acknowledged that: * he had been counseled and advised of the basis for the action being taken by his commanding officer * he was advised that if he desired a hearing before a board of officers, military would be made available to him * he was advised of his right to employ civilian counsel at no expense to the U.S. Government 8. The applicant waived his right to a hearing before a board of officers and elected not to submit statements in his own behalf. He also acknowledged he understood that if he was separated from the Army under the provisions of Army Regulation 635-208, his discharge may be other than honorable, that he may be deprived of many rights and benefits as a veteran under both Federal and State law, and that he may expect to encounter some prejudice in civilian life where the type of service rendered by him may have a bearing. 9. The applicant's commanding officer formally recommended his separation on 16 October 1963, under the provisions of Army Regulation 635-208. The commander stated the basis for his recommendation was the applicant's convictions by one summary court-martial, by one special court-martial, and his refusal to perform any further military service. 10. The Post Stockade Evaluation Board found the applicant non-restorable on 5 September 1963, after he stated before the Board "I am now through with the Army. I just don't care for it anymore. I went AWOL because I don't want to go overseas." The commander further stated the applicant's established pattern of repeated unauthorized absences combined with a declaration of intent not to serve in the Army established a pattern for shirking his duty. He was not receptive to any rehabilitation measures and persisted in his selfish desire for any kind of discharge. His attitude coupled with acts of misconduct made him a shirker of duty to serve his country. 11. The separation authority approved the recommendation for separation for unfitness on 24 October 1963, and directed the issuance of an Undesirable Discharge Certificate. 12. The applicant was discharged on 6 November 1963, under the provisions of Army Regulation 635-208, for unfitness. His DD Form 214 for this period of service shows his service was characterized as under other than honorable conditions and he accrued 140 days of lost time. The DD Form 214 also shows he was paid a reenlistment bonus in the amount of $900.00. 13. The Army Discharge Review Board determined, on 28 May 1964, that the applicant was properly discharged and denied his request for a change of the type and nature of his discharge. 14. The applicant provided letters from the U.S. Department of Justice pertaining to a debt to the U.S. Government that the applicant incurred as result of recoupment of a portion of his reenlistment bonus. The debt was incurred based on his failure to complete the full term of service for which the bonus was authorized. These letters also show the applicant paid the debt in full. 15. The applicant also provided a 3-page document from the Social Security Administration pertaining to his social security benefits. His intent for providing this document to the Board is unclear. REFERENCES: 1. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, states in: a. Paragraph 3-7a, 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, 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. 2. Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness. Individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined an individual's military record was characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts. DISCUSSION: 1. The applicant requests an upgrade of his under other than honorable conditions discharge. 2. The evidence of record confirms his separation processing for unfitness was accomplished in accordance with the applicable regulation. He was afforded the opportunity to consult with legal counsel and he was advised of the basis for his proposed separation action, its effect, and of the rights available to him. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 3. His record of indiscipline includes two court-martial convictions and 140 days of lost time. Based on this record of indiscipline, the separation authority determined he would receive an undesirable discharge (i.e., characterized as under other than honorable conditions. There is no evidence of error or injustice in the separation authority's decision. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004700 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004700 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2