IN THE CASE OF: BOARD DATE: 2 November 2017 DOCKET NUMBER: AR20160006687 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. 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: 2 November 2017 DOCKET NUMBER: AR20160006687 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :AIR :RAS RML: DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 2 November 2017 DOCKET NUMBER: AR20160006687 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 under other than honorable conditions discharge. 2. The applicant states he was assaulted at the end of duty one day by a drunk, off duty Soldier, which left him traumatized. He had served 27 months with honor. He lived in World War II barracks in Germany. He was beaten repeatedly. He did not realize that leaving the military early would deprive him of benefits. 3. The applicant provides Special Orders Number 13, dated 13 January 1968. 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 for a 3-year term on 30 November 1966. He was trained in and held military occupational specialty 35M (Aviation Navigation Equipment Repairer). 3. On 24 August 1967, at Fort Hood, TX, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 2 to 9 August 1967. 4. On 12 December 1967, also at Fort Hood, he again accepted NJP under the provisions of Article 15 of the UCMJ for operating a privately owned vehicle with no post registration and with an altered driver's license. 5. He served in Germany from 1 March 1968 to about 30 November 1968. He was assigned to Company B, 9th Engineer Battalion. While assigned to this unit, he accepted NJP under the provisions of Article 15 of the UCMJ on: * 17 July 1968, for being AWOL on 16 July 1968 * 29 July 1968, being AWOL from 25 to 28 July 1968 6. On 7 October 1968, he was convicted by a special court-martial of one specification of being AWOL from 12 August to 15 September 1968. The court sentenced him to confinement at hard labor for 3 months. The convening authority approved his sentence on 17 October 1968. 7. Also on 7 October 1968, the applicant underwent a mental status evaluation. The military psychiatrist diagnosed the applicant with a passive-aggressive personality. The Report of Psychiatric Evaluation states the applicant had considerable difficulty adjusting to military service since his entry. He had been considered for separation in the past and in the present. He described no motivation for continued service. He was oriented, rational, and coherent, and he gave no indication of abnormal thinking or behavior suggesting psychosis. His rehabilitation potential was poor. He met retention standards of Army Regulation (AR) 40-501 (Standards of Medical Fitness) and he was cleared for administrative separation as deemed appropriate by his chain of command. 8. On 17 October 1968, his immediate commander initiated a Certificate of Unsuitability for Reenlistment (bar to reenlistment) against him citing his continued misconduct (unsatisfactory conduct and efficiency). He was furnished a copy of the bar and elected not to submit a statement in his own behalf. The approving authority ultimately approved the bar. 9. On 18 October 1968, the applicant's immediate commander notified the applicant he was being considered for elimination from the service for unfitness under the provisions of AR 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness stemming from his inability to remain at any given place without constant supervision and his complete disregard for authority in any form. The applicant was advised of his right to present his case before a board of officers, submit statements in his own behalf, be represented by counsel, or waive his rights in writing. 10. On 10 October 1968, the applicant acknowledged receipt of the separation memorandum. He consulted with legal counsel and was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him. He waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and declined making a statement in his own behalf. He acknowledged he understood: * he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him * as a result of the issuance of an under other than honorable conditions discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws 11. Subsequent to this acknowledgement, his immediate commander initiated separation action against him under the provisions of AR 635-212 by reason of unfitness with an undesirable discharge. The immediate commander stated: * the discharge was recommended because of the applicant's habits and traits of character manifested by repeated commission of being AWOL and other unmilitary acts * both his conduct and efficiency ratings were unsatisfactory; he had a poor sense of values and did not desire to rectify his actions 12. The applicant's intermediate and senior commanders recommended a waiver of the rehabilitative efforts and approval of the elimination action with an undesirable discharge. 13. On 12 November 1968, the separation authority approved the applicant’s discharge under the provisions of AR 635-212 by reason of unfitness and directed he be furnished an Undesirable Discharge Certificate and reduced to the lowest enlisted grade, if applicable. Accordingly, the applicant was discharged on 3 December 1968. 14. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of AR 635-212 by reason of unfitness with a separation program number of 28B (unfitness). His character of service was under other than honorable conditions. He completed 1 year, 8 months, and 24 days of active service and he had 101 days of lost time. 15. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-212, then in effect, set forth the policy for administrative separation for Soldiers due to unfitness. It provided that Soldiers would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted otherwise. 2. AR 635-200 (Active Duty Enlisted Administrative Separations) provides 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The evidence of record shows the applicant displayed a pattern of misconduct as evidenced by his multiple instances of AWOL, NJP, court-martial conviction, and overall disregard for order and discipline within the Army. Accordingly, his chain of command initiated elimination action against him. 2. The applicant’s discharge proceedings were conducted in accordance with the law and regulations applicable at the time and the character of service is commensurate with his overall record of military service. 3. Other than the applicant's own statement, there is no evidence indicating he was assaulted by a drunk individual or that his discharge was related to this purported event. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006687 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006687 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2