RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  2 October 2007
	DOCKET NUMBER:  AR20070004693 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Ann M. Campbell

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. Redmann

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that during the period of his military service he was young and unable to adjust to military life.  He also states, in effect, that although he tried to adjust, he was very confused and homesick at the time.  The applicant concludes by stating he is now 62 years of age, would like to attend military events with his veteran friends, and also be eligible for burial with military honors when the time comes.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 27 April 1964.

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’s military service records contain a DD Form 373 (Consent, Declaration of Parent or Legal Guardian), dated 25 May 1962.  This document shows, in pertinent part, that the applicant’s date of birth is 31 January 1945 and that his mother consented to the applicant’s enlistment in the U.S. Army for a period of 3 years.

3.  The applicant’s military service records show he enlisted and entered active duty in the Regular Army on 29 May 1962 for a period of 3 years.  At the time he was 17 years old.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 161.00 (Field Artillery Missile Crewman).

4.  On 21 March 1963, nonjudicial punishment was imposed against the applicant for absenting himself without leave from on or about 2 March 1963 until on or about 3 March 1963, and from on or about 9 March 1963 until on or about
12 March 1963.  His punishment consisted of reduction to the grade of private (E-2), forfeiture of $10.00 pay, 14 days restriction, and 14 days extra duty.

5.  On 22 August 1963, nonjudicial punishment was imposed against the applicant for being disorderly in uniform in a public place on 17 August 1963 and presenting, with intent to deceive, a pass which the applicant knew to be unauthorized.  His punishment consisted of forfeiture of $21.00 pay, 14 days restriction, and 14 days extra duty.

6.  On 21 September 1963, nonjudicial punishment was imposed against the applicant for wrongfully appropriating a military vehicle by deviating from the normal route to the motor pool.  His punishment consisted of 14 days extra duty.

7.  The applicant’s military service records contain a DD Form 458 ( Charge Sheet), dated 25 October 1963, that shows the applicant’s commander preferred a court-martial charge against the applicant for his violation of Article 92 of the Uniform Code of Military Justice (UCMJ) for, having knowledge of a lawful order issued by a superior commissioned officer, to sign in every hour on the hour between the end of duty and bed check, an order which it was his duty to obey, did fail to obey the same.  This document also shows that the applicant was referred for trial by a summary court-martial, that he entered a plea of guilty to the charge and specification, and that he was found guilty of the charge and specification.  His sentence was reduction to private (E-1), confinement at hard labor for 1 month, and forfeiture of $28.00 pay.  This document further shows that on 1 November 1963, the Summary Court-Martial Convening Authority approved the findings and proceedings of the special court-martial and ordered the sentence executed.

8.  The applicant’s military service records contain a copy of Headquarters,
3rd Battalion, 81st Artillery (Korea), Summary Court-Martial Order Number 1, dated 15 November 1963.  This document shows, in pertinent part, that the unexecuted portion of the sentence to confinement at hard labor for 1 month, was suspended for 1 month.

9.  On 8 November 1963, the applicant acknowledged that he had been notified by his commanding officer that he was being recommended for discharge under the provisions of Army Regulation 635-208 for unfitness.  On that date, the 

applicant was counseled by the designated counseling officer and acknowledged the fact that he may be issued an Undesirable Discharge Certificate.  The 
applicant indicated that he requested a hearing before a Board of Officers; requested that the designated military counsel represent him; and that he did not submit statements in his own behalf, but that such statements would be deferred for submission at a later date and referred to the Board of Officers.  The applicant also indicated, in pertinent part, that he understood he may expect to encounter substantial prejudice in civilian life if he was issued a discharge under conditions other than honorable.  He further indicated that, as the result of such discharge, he may be deprived of many or all rights as a veteran under both Federal and State laws.

10.  The applicant's military service records contain a copy of a certificate issued by the captain serving as Staff Psychiatrist, 121st Evacuation Hospital (Korea), dated 2 December 1963.  This document shows that this medical official examined the applicant and diagnosed him as having a passive-aggressive personality, which existed prior to service.  He also opined that the applicant was mentally capable to distinguish right from wrong and to adhere to the right; was mentally able to understand the nature of the board proceedings and to assist in his own defense; that his condition was such that counseling, disciplinary action, transfer or psychiatric treatment in the military setting would be of no benefit; there was no mental defect warranting separation through medical channels; and that the applicant was cleared for administrative action as deemed appropriate by his command.

11.  On 9 December 1963, the applicant’s commander recommended that the applicant be eliminated from the Army under the provisions of Army Regulation 635-202 because of frequent incidents of a  discreditable nature.  The reasons for the commander’s recommendation were based on the applicant repeatedly absenting himself from duty without authority, his complete disregard for orders or regulations restricting his freedom of movement, four occasions of punishment under the UCMJ, and one summary court-martial.  The commander indicated that the applicant’s conduct and efficiency ratings were unsatisfactory and recommended an Undesirable Discharge Certificate be issued.

12.  On 18 December 1963, the lieutenant colonel serving as Commander,
3rd Battalion, 81st Artillery (Korea), recommended that the applicant appear before a board of officers convened under the provisions of Army Regulation 635-208.


13.  On 2 January 1964, nonjudicial punishment was imposed against the applicant for being apprehended by the military police in an off-limits area on
27 December 1963.  His punishment consisted of forfeiture of $15.00 pay,
14 days restriction, and 14 days extra duty.

14.  The applicant’s military service records contain a copy of Headquarters,
I Corps (Group) (Korea), Special Orders Number 14, dated 18 January 1964.  These orders show that a Board of Officers was appointed for the purpose of determining whether the applicant should be discharged prior to expiration of his term of service.

15.  The applicant’s military service records contain a copy of Headquarters,
3rd Battalion, 81st Artillery (Korea), Report of Proceedings by Board of Officers, dated 15 February 1964.  This document shows that a Board of Officers convened on 13 and 14 February 1964, to determine whether the applicant should be discharged prior to expiration of his term of service.  The Report of Proceedings show that the applicant appeared before the board at all sessions, with his counsel.  This document also shows that the Board carefully considered the evidence of record and found that the applicant had developed a pattern of misconduct and disregard for Army regulations unamenable to rehabilitation.  The Board recommended that the applicant be discharged with a general discharge under the provisions of Army Regulation 635-208.

16.  The applicant’s military service records contain a DA Form 37 (Report of Proceedings of Board of Officer), dated 14 February 1964.  This document shows that on 24 March 1964, the colonel serving as The Adjutant General, Headquarters, 3rd Battalion, 81st Artillery (Korea), authenticated the report indicating that the General Court-Martial Convening Authority approved the findings and recommendation of the Board for the general discharge of the applicant under the provisions of Army Regulation 635-208.

17.  The applicant's DD Form 214 shows he was discharged with a general discharge, under honorable conditions, on 27 April 1964, in accordance with the provisions of Army Regulation 635-208, Separation Program Number (SPN) 28B. At the time, the applicant had completed 1 year, 10 months, and 12 days of active service and he had 17 days time lost.
 
18.  On 7 October 1976, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.  The ADRB determined that the applicant was properly discharged, denied his appeal, and notified the applicant of the decision on 8 November 1976.

19.  Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel for, in pertinent part, frequent incidents of a discreditable nature with civil or military 
authorities.  This Army regulation provides that Soldiers discharged for frequent 
incidents of a discreditable nature will be furnished an Undesirable Discharge Certificate, except that an honorable or general discharge certificate may be awarded by the separation authority.

20.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.  Paragraph 31 (Item 11c - Reason and Authority) states, in pertinent part, "the authority for transfer or discharge will be entered in this item by reference to the appropriate regulation, circular, bulletin, special separation directive, statute, etc., followed by the SPN and descriptive reason for transfer or discharge."  

21.  Army Regulation 635-5-1 (Separation Program Numbers (SPN) Codes), in effect at the time of the applicant's separation from active duty, provides 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.  It identifies the SPN code of “28B” as the appropriate code to assign enlisted Soldiers discharged for unfitness who are involved in frequent incidents of a discreditable nature with civil or military authorities.

22.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  Whenever there is doubt, it is to be resolved in favor of the individual.


23.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his general discharge under honorable conditions should be upgraded to an honorable discharge because during the period of his military service he was young and unable to adjust to military life.

2.  The evidence of record shows that the applicant was 17 years of age at the time he enlisted in the Army; 18 years of age during the period of time when he committed his acts of indiscipline, and that he was more than 19 years of age at the time of his separation from the Army.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service commitment during this time period.

3.  The evidence of record shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record shows the applicant completed 1 year, 10 months, and 12 days of his 3-year enlistment and that he had 17 days of time lost during the period of service under review.  The evidence of record also shows that the applicant had a recurring history of indiscipline during the period of his military service and that he was separated based on frequent incidents of a discreditable nature with civil or military authorities.  Thus, the evidence of record confirms that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___AMC _  ___LMD_  ___JCR__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




____Ann M. Campbell_____
          CHAIRPERSON




INDEX

CASE ID
AR20070004693
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/10/02
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19640427
DISCHARGE AUTHORITY
AR 635-212. SPN 28B 
DISCHARGE REASON
Unsuitability
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.