BOARD DATE: 3 May 2018 DOCKET NUMBER: AR20160007713 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration I BOARD DATE: 3 May 2018 DOCKET NUMBER: AR20160007713 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 to an honorable discharge. 2. The applicant states the discharge he received was improper or inequitable. 3. The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), social security card, and State Elections Commission Electoral Identification Card. 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 was inducted in the Army of the United States on 12 January 1961. He appears to have completed basic combat training at Fort Buchanan, PR, from 18 January to 12 April 1961. While at Fort Buchanan, he was reported absent without leave (AWOL) on two occasions: on 7 April 1961 and on 11 April 1961. 3. On 12 April 1961, at Fort Buchanan, PR, he was convicted by a summary court-martial of failing to go to his appointed place of duty on 7 April 1961. The court sentenced him to forfeiture of $40.00 pay. The convening authority approved the sentence on the same date. 4. He was reassigned to Fort Jackson, SC, on or about 13 April 1961 and arrived on or about 16 April 1961 for completion of training. However, there is no indication he completed advanced individual training for award of a military occupational specialty. 5. He was promoted to pay grade E-2 on 15 May 1961 and he was ordered transferred to a training unit at Fort Dix, NJ on or about 13 July 1961. 6. On 11 December 1961, at Fort Dix, NJ, he was convicted by a special court- martial of two specifications of AWOL from 14 July to 1 August 1961 and from 2 August to 23 October 1961. The court sentenced him to confinement at hard labor for 6 months, a forfeiture of $20.00 pay per month for 6 months, and a reduction to E-1. 7. On 12 December 1961, the convening authority approved the sentence, but suspended that portion of the sentence to confinement at hard labor in excess of 4 months until 10 June 1962, and ordered it duly executed. 8. He was reduced accordingly to pay grade E-1 on 12 December 1961. 9. On 9 January 1962, the applicant’s company commander recommended the applicant's elimination from the service under the provisions of Army Regulation (AR) 635-208 (Unfitness) and furnished an Undesirable Discharge Certificate. He stated the reason for separation action was the applicant was considered unfit for further military service due to his record of misconduct. Attempts had been made to rehabilitate the applicant by giving him varied assignments and duties under different officers and noncommissioned officers, in a different organization or unit. 10. A Report of Neuropsychiatric Examination, dated 6 February 1962, shows the applicant was referred for an examination prior to board action under the provisions of AR 635-208. The examining psychiatrist stated that the applicant completed basic combat training with no apparent difficulty. The applicant stated that he would not return to duty and if he was returned to duty he might again go AWOL. His motivation for continued duty was absolutely nil. The applicant had no neuropsychiatric disease and he was mentally responsible both to distinguish right from wrong and adhere to the right. He recommended the applicant be separated from the service UP AR 635-208. 11. A Certificate, dated 13 February 1962, shows during his period in the stockade he received a verbal reprimand on 16 November 1961 for horse play and 2 hours of extra duty for 14 days on 3 December 1961 for violation of Article 91. 12. On 21 February 1962, the separation authority approved the applicant's discharge under the provisions of paragraph 3a, AR 635-208, Separation Program Number (SPN) 28B, and directed the issuance of an Undesirable Discharge Certificate. 13. The applicant was discharged accordingly on 5 March 1962. His DD Form 214 shows he completed 6 months and 3 days of active duty, with 230 days of time lost. His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate. His DD Form 214 lists in item 11c (Reason and Authority) the entry AR 635-208, SPN 28B. 14. There is no indication the applicant petitioned the Army Discharge Review within its 15-year statute of limitations for an upgrade of his discharge. REFERENCES: 1. AR 635-208, in effect at the time, set forth the policy for administrative separation for unfitness. Paragraph 3 provided that individuals would be discharged by reason of unfitness when their records were characterized by frequent incidents of a discreditable nature with civil or military authorities and an established pattern of shirking. An undesirable discharge was normally considered appropriated unless the particular circumstances warranted an honorable or a general discharge. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, stated: b. Paragraph 3-7a – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. Paragraph 3-7b – a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. AR 635-5 (Separation Documents), in effect at the time, stated, in pertinent part, that the word "Unfitness" would not be stated in words on the DD Form 214. The authority and SPN would be entered in item 11c. 4. The SPN "28B" was the appropriate SPN code for individuals involuntarily discharged for unfitness. DISCUSSION: 1. The applicant displayed a pattern of misconduct as evidence by his continued AWOL and two courts-martial convictions. As a result, his company commander initiated discharge action against him under the provisions of AR 635-208, for unfitness. The separation authority approved his discharge and directed the issuance of an Undesirable Discharge Certificate. 2. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors that would tend to jeopardize his rights. He was properly discharged in accordance with pertinent regulations with due process. The separation authority determined his service did not rise to the level required for an honorable or a general discharge. BOARD DATE: 3 May 2018 DOCKET NUMBER: AR20160007713 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160007713 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007713 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2