BOARD DATE:	  23 April 2013

		DOCKET NUMBER:  AR20120017233 


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, in effect, upgrade of his undesirable discharge to a general discharge.

2.  He states he served in the National Guard from 1961 to 1962.  He then served on active duty in the Regular Army from 1962 to 1965 and received an undesirable discharge.  He was given this discharge for being "UA" (properly known as absent without leave (AWOL)) for 3 days during his active service.  The comment was also made that he was too "gung ho."  He served a tour in Laos and returned stateside.  He requested a tour in Vietnam.  He was a young man and volunteered for that type of duty.

3.  He recently heard that members of the armed forces who went AWOL during the Vietnam era were given the opportunity to get an undesirable discharge changed to a general discharge.  This was done when President Nixon gave amnesty to all draft dodgers from the Vietnam era.  This change would give him the opportunity to join the American Legion and other organizations. 

4.  He provides a self-authored statement.

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.  His record shows he served in the National Guard for an unknown period until he was released because he was underage.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  He enlisted in the Regular Army on 12 January 1962.  The highest rank/grade he held was specialist four/E-4.

4.  On 4 December 1962, pursuant to his guilty pleas, he was convicted by a summary court-martial of making a false statement with the intent to deceive and for loitering on his post while posted as a sentinel.

5.  His record contains a DA Form 24 (Service Record) showing his service outside the continental United States.  It shows he served primarily in Hawaii with a period of service in Thailand from 19 May to 31 August 1962. 

6.  On 29 June 1963, he reenlisted for a period of 3 years.

7.  His record shows he accepted nonjudicial punishment (NJP) on:

* 11 July 1964 for dereliction in the performance of his duties
* 18 July 1964 for failing to report for extra duty
* 16 December 1964 for being AWOL from 18-22 and 22-30 November 1964 and for disobeying a lawful order

8.  On 12 January 1965, pursuant to his guilty pleas, he was convicted by a summary court-martial of being AWOL and breaking restriction.

9.  On 19 January 1965, First Sergeant C____ C. S____ stated on a 
DA Form 19-24 (Statement) that he had asked for discharge proceedings on the applicant under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) to be stopped because he wanted to give him another chance to prove he wanted to soldier with his old unit.  He was under the impression the applicant would cooperate and give himself a chance to rehabilitate, but on 22 December 1964 he went AWOL and did not return until late at night that same day.  He was then placed in pre-trial confinement, awaiting trial for AWOL and breaking restriction.  The applicant was given a summary court-martial and was found guilty of said charges and was presently confined at the post stockade serving his sentence.

10.  On 19 January 1965, a commander stated in a certificate that shortly before being assigned to headquarters company the applicant was involved in a burglary in Wahiawa, HI.

11.  His records contain a psychiatric evaluation statement, dated 19 January 1965.  Therein, the psychiatrist stated the applicant, a 20-year-old, was referred for psychiatric evaluation prior to board action under the provisions of Army Regulation 635-208.  The evaluation revealed no evidence of any mental diseases or defects sufficient to warrant separation through medical channels.  
As part of the pertinent history the psychiatrist indicated the applicant had received NJP a total of seven times and was pending a summary court-martial.  There were no findings of psychosis, neurosis, organic brain syndrome, or mental deficiency.  The psychiatrist provided a diagnosis of aggressive personality – immaturity.  It was recommended the applicant be administratively separated because he was not motivated for further military service and had a chronic history of acting out.

12.  The record contains a signed statement by the applicant, dated 19 January 1965, wherein he acknowledged he had been notified that a recommendation was being submitted for his elimination from the service under the provisions of Army Regulation 635-208 for unfitness.  He acknowledged he had been advised he could be given an undesirable discharge as a result of the action recommended.  He further acknowledged he was afforded the opportunity of requesting counsel.  He waived his right to appear before a Board of Officers and elected not to submit a statement in his own behalf.

13.  On 8 March 1965, he was discharged under the provisions of Army Regulation 635-208 with a separation program number of 28B, denoting unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities, and given an undesirable discharge.  The DD Form 214 he was issued for this period of service shows he completed 3 years, 5 months, and 22 days of total active service with 69 days of time lost.

14.  A letter addressed to Congressman Monagan, dated 1 February 1967, stated the Army Discharge Review Board (ADRB) had denied the applicant's request for upgrade his undesirable discharge.

15.  Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included frequent incidents of a discreditable nature with military or civilian authorities.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

16.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7b, states 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.

17.  On 4 April 1977, the Department of Defense (DOD) directed each armed service to conduct a review of discharges of former service members who were discharged between 4 August 1964 and 28 March 1978, with an undesirable or a general discharge.  This program was titled the DOD Special Discharge Review Program (SDRP).   The program mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  An individual who had received a punitive discharge was not eligible for consideration under the SDRP.  Eligibility for the program was restricted to individuals discharged with either an undesirable discharge or a general discharge between 9 August 1964 and 28 March 1973, inclusive.  Individuals had to apply for consideration by the SDRP, and the program expired on 4 October 1977.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge under other than honorable conditions could be upgraded to a general discharge under the provisions of the SDRP.  However, individuals had to apply for consideration by the SDRP, and the program expired on 4 October 1977.  Therefore, he is not eligible for consideration for a discharge upgrade under the SDRP. 

2.  He was discharged under the provisions of Army Regulation 635-208 by reason of unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  Available NJP documents show he received NJP for dereliction in the performance of his duties, failing to report for extra duty, being AWOL from 18-22 and 22-30 November 1964, and for disobeying a lawful order.  His record further shows he was convicted by summary courts-martial for making a false statement with the intent to deceive, for loitering on his post while posted as a sentinel, for being AWOL, and for breaking restriction.  His record shows he had a total of 69 days of time lost.  These frequent instances of indiscipline clearly show he did not meet the standards of acceptable conduct and performance of duty for military personnel.  This misconduct also renders his service unsatisfactory.

3.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  He was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

4.  With respect to his statement about an upgrade making him eligible for joining the American Legion or other veterans' organizations, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for joining veterans' or other organizations.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to a general discharge under honorable conditions.

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)                                         AR20120017233



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ABCMR Record of Proceedings (cont)                                         AR20120017233



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