ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF:
 BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20170014710

APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:
DD Form 149 (Application for Correction of Military Record) FACTS:
1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 feels he was not given the opportunity to appeal the findings of the general court martial and present evidence in his defense.  He was told to conduct an unjust arrest and did not comply with what he felt was an unlawful order and was unjustly punished for not making the arrest of a soldier who had not actually committed a chargeable offense.

3. A review of the applicant’s service record shows:

a. He enlisted in the Regular Army on 29 June 1961.

b. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 12 October 1963, for disorderly in that you were attempting to assault an undetermined number of Vietnamese Nationals with a beer bottle.
* 1 November 1963, the applicant was convicted in special court of assault, disrespect towards a superior officer and contempt toward a superior NCO. He was sentenced to 6 months in confinement and a fine of $80 per month
* 

   c. On 13 November 1963, the applicant's immediate commander recommended he be discharged under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) due to unfitness. His commander noted the applicant had been involved in numerous disciplinary cases requiring action under Article 15 of the UCMJ. His latest offense was assault an undetermined number of Vietnamese Nationals with a beer bottle. He was sentenced to 6 months in confinement.
   d. On 3 March 1964, the applicant was advised of the basis for the pending separation action under the provisions of Army Regulation 635-208. He declined the opportunity to consult with counsel, waived a hearing of his case by a board of officers, and declined to submit a statement in his own behalf. He acknowledged if an undesirable discharge was issued to him, such discharge would be under conditions other than honorable; that as a result of such discharge he may be deprived of many or all rights as a veteran under both Federal and State laws; and that he may expect to encounter substantial prejudice in civilian life in situations where the type of service rendered in any of the branches of the Armed Forces or the type of discharge received there from may have a bearing.
   e. On 6 January 1964, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-208, by reason of unfitness, and directed that he be issued an Undesirable Discharge Certificate.
   f. On 27 March 1964, the applicant was separated under the provisions of Army Regulation 635-208, separation program number (SPN) 28B, for unfitness, with an under other than honorable conditions discharge. He had completed 2 years, 4 months, and 3 days of total active service during this period with 146 days of lost time.
4. 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.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the pattern of misconduct resulting in discharge involving violent behavior towards others, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.


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.


6/25/2019
X 

CHAIRPERSON
Signed by: 
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 635-208, 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 one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities,
(b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or
(e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or honorable discharge.

3. 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 SPN 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.

4. 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.

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