IN THE CASE OF:	  

		BOARD DATE:	  29 November 2012

		DOCKET NUMBER:  AR20120009222 


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 upgrade of his discharge.

2.  The applicant states he was drinking too much.  He contends that because he is older now, the Board should find it in the interest of justice to upgrade his discharge.

3.  The applicant provides no additional documentation.

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.  On 30 August 1963, at the age of 18 years, 2 months, and 4 days, the applicant enlisted in the Regular Army for a period of 3 years.  He completed his training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 3 March 1964, the applicant was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 (Armed Forces of the United States report of Transfer or Discharge) for his initial period of service is not available for review.

4.  On 4 March 1964, he reenlisted for a period of 3 years.  He was subsequently assigned for duty in the Federal Republic of Germany.  He again reenlisted on
18 December 1965 for a period of 3 years.

5.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 25 July 1964 for being absent without leave (AWOL) from 3 to 5 July 1964
* 8 August 1964 for missing bed check on 1 August 1964 and remaining absent until 1600 hours, 2 August 1964
* 4 April 1966 for being AWOL from 3 to 4 April 1966
* 23 May 1966 for being insubordinate to a noncommissioned officer

6.  Special Court-Martial Order Number 38, issued by Headquarters,
3rd Battalion, 19th Infantry, dated 2 July 1966, shows the applicant pled guilty and he was found guilty by a special court-martial of:

* being AWOL from 1-9 June 1966
* being AWOL from 10-20 June 1966
* breaking arrest on 10 June 1966

7.  On or about 5 July 1966, the applicant was notified by his commander of his intention to separate him under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).  In a statement, dated 7 July 1966, the applicant indicated he had been afforded the opportunity of requesting counsel; however, he declined the opportunity to do so.  He also indicated he did not request a hearing by a board of officers and he did not desire to submit a statement in his own behalf.

8.  The applicant further indicated he understood that if an undesirable discharge is issued to him that such discharge will 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.

9.  On 20 July 1966, the applicant's immediate commander recommended the applicant be barred from reenlistment.  The basis for the action was his acceptance of NJP under Article 15, UCMJ; court-martial conviction; indebtedness, and his unsatisfactory conduct and efficiency ratings.  The final decision by the approval authority is not in the available records.

10.  On 24 July 1966, the applicant's commander recommended the applicant be separated under the provisions of Army Regulation 635-208 for unfitness.  The commander stated it was not considered feasible or appropriate to recommend elimination under the provisions of Army Regulation 635-209 (Personnel Separations - Unsuitability) because the applicant had been a constant disciplinary problem.

11.  On 25 July 1966, the applicant underwent a psychiatric evaluation.  He was diagnosed with having an aggressive personality with features of emotional instability.  He was described as being quite jittery.  He was in handcuffs because of acting out problems in the stockade.  He showed no signs of neurosis, psychosis, or organic brain disease.  He expressed the attitude that he would do what he wanted - if he felt like controlling himself, he would, if not then tough luck for everyone else.  Motivation and attitude were poor.  Psychiatric treatment was of no value in his case.  Separation was indicated as being appropriate before he caused further problems.  The applicant was psychiatrically cleared for administrative action by the command.

12.  On 5 August 1966, the applicant's battalion commander recommended that he be separated under the provisions of Army Regulation 635-208, separation program number (SPN) 28B, due to frequent incidents of a discreditable nature with military authorities.  The commander cited the applicant's past record of AWOL, missing bed check, attitude, and the fruitless attempts to rehabilitate him.

13.  The separation authority, a major general, subsequently approved the applicant's discharge under the provisions of Army Regulation 635-208 for frequent incidents of a discreditable nature with civil or military authorities with a SPN of 28B.  He directed the applicant be issued an Undesirable Discharge Certificate.

14.  On 28 September 1966, the applicant was discharged.  He completed
2 years, 10 months, and 3 days of total active service.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-212 (Discharge – Unfitness and Unsuitability) with an SPN of 28B.

15.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  Army Regulation 635-212, dated 15 July 1966, superseded Army Regulation 635-208.  This regulation set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a stated an individual was subject to separation for unfitness when one or more conditions, including frequent incidents of a discreditable nature with civil or military authorities, existed.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

17.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), currently in effect, provides in:

	a.  Paragraph 3-7a, 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, 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 AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.  There is no evidence of record, nor has the applicant provided sufficient evidence to support upgrading his discharge.

2.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.

3.  The applicant contends that because he is now older, and presumably more mature, his discharge should be upgraded; however, his contention is without merit.  Records show the applicant was over 19 years of age at the time of his numerous acts of indiscipline and offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



____________X___________
               CHAIRPERSON
      
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.
ABCMR Record of Proceedings (cont)                                         AR20120009222



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ABCMR Record of Proceedings (cont)                                         AR20120009222



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