ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:        9 April 2019

	DOCKET NUMBER:  AR20160017050


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be upgraded to an honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552)
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), for the periods ending 28 November 1963 and 5 September 1964

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he was asked by his commander to carry out a covert operation just after he reenlisted in 1963.  After the operation he was officially discharged but didn't know that discharge was a general discharge until 2012.

3.  The applicant enlisted in the Regular Army 5 January 1960.  When it was discovered he was under age 17, he was released from active duty on 22 August 1960.  This period of service was declared void; as such no DD Form 214 was issued.

4.  The applicant again enlisted in the Regular Army on 7 March 1961, and reenlisted on 29 November 1963.

5.  The applicant received nonjudicial punishment (NJP) on 3 April 1964, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go to his place of duty.

6.  Court-martial charges were preferred against the applicant on 3 April 1964 for wrongful appropriation of government property.  He was convicted by a summary court-martial on 15 April 1964.

7.  Court-martial charges were preferred against the applicant on 2 June 1964 for wrongful appropriation of 10 pieces of military equipment.  He was convicted of these charges on 15 June 1964. 

8.  The applicant's commander notified the applicant on 13 July 1964, that if he failed to pay the remainder owed on a civilian promissory note by 1 August 1964, a Civil Court Order would be issued.  Final resolution of this matter is not of record.

9.  The applicant's unit commander initiated elimination actions against the applicant on 18 July 1964 and referred him for a mental health evaluation.

10.  The Report of Psychiatric Evaluation, of 22 July 1964, diagnosed the applicant as suffering from an antisocial personality and recommended he be administratively separated for the good of the service.  A Medical Officer's Report, dated 30 July 1964, cleared the applicant to participate in any board proceedings.

11.  After consulting with counsel, the applicant acknowledged the separation actions on 4 August 1964.  He waived his rights to a board of officers hearing and to submit a statement in his own behalf. 

12.  The applicant's unit commander formally recommended the applicant's separation from service on 5 August 1964, under the provisions of Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability). 

13.  The following items were included in the separation packet that related in part to incidents either predating his first enlistment or during his first enlistment period of service.

	a.  An undated Federal Bureau of Investigation showing: 

		(1)  Two pre-service charges of felony theft on 6 November 1960 and involuntary armed robbery on 17 February 1961 (charges dropped due to lack of evidence); and,

		(2)  One charge during his first enlistment of auto theft on 5 July 1961.  The attached police report indicates this charge was dropped due to a finding that it could not be determined whether or not the applicant had received permission to utilize the vehicle but that the applicant received nonjudicial punishment for pass violation.  

	b.  Two summary court-martials:

* 21 October 1961, for wrongful appropriation of a military vehicle
* 8 November 1961, for failure to follow a lawful order – bringing or consuming alcohol during a field exercise
	
	c.  A DA Form 13-32 (Military Police Report), dated 10 July 1964, details an investigation concerning the applicant's operation of a motor vehicle without a valid driver's license in his possession; speed excessive of conditions; failure to maintain control of his vehicle resulting in an accident.  The report lists the following prior offenses:

* 12 October 1961, failure to keep vehicle under control resulting in an accident
* 10 November 1962, injury to himself 
* 16 November 1963, failure to report a traffic accident 
* 5 March 1964, destruction of private property

14.  The separation authority's approval of the applicant's separation action is not available for review.

15.  Special Orders Number 248, issued by the U.S. Army Personnel Center, Fort Hamilton, NY on 4 September 1964, directed the applicant be discharged under the provisions of Army Regulation 635-209, with a general discharge.

16.  The applicant was discharged on 5 September 1964.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-209.  It also shows:

* 9 months and 7 days of creditable service this period
* discharge under honorable conditions 
* a SPN (separation program number) code of "264" (unsuitability character or behavior disorder)
* award of no personal awards or decorations 


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  The Board found, based upon multiple UCMJ offenses as well as civil criminal offenses in the applicant’s record (some very serious in nature), the characterization of service received at the time of discharge was warranted and that upgrading the characterization of service of the applicant was not appropriate.  



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION


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.



REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-5 (Personnel Separations – Separation Documents), Appendix A (SPN and Authority Governing Separations), provided for SPNs and their corresponding reason for separation/discharge.  The SPN (later renamed Separation Program Designator (SPD) codes) are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The SPN of "264" was the correct code for Soldiers separating under the provisions of Army Regulation 635-209 by reason of unsuitability. 

3.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action would be taken to discharge an individual for unsuitability only when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included:  (a) inaptitude; (b) character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress; (c) apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively; (d) enuresis, (e) chronic alcoholism; and (f) class III homosexuality (evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available.  A general or an honorable discharge was considered appropriate.  

4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  
	
      a.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  
	
      b.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.


ABCMR Record of Proceedings (cont)	 AR20160017050
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