BOARD DATE:	  21 May 2013

		DOCKET NUMBER:  AR20120019114 


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 an upgrade of his undesirable discharge to a fully honorable discharge

2.  The applicant states he completed 18 months of military service from November 1962 to June 1964.  He was only 17 years of age at the time of his enlistment, he encountered racism in the form of language and treatment, and he was unprepared to deal with it.  He is older and wiser now and he is also currently in school.

3.  The applicant did not provide any evidence. 

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 records show he was born in April 1945 and he was inducted into the Army of the United States at 17 years and 7 months of age on 30 November 1962.  

3.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 111.07 (Light Weapons Infantryman).  

4.  On 5 February 1963, while still in training at Fort Ord, CA, he was convicted by a summary court-martial of failing to obey orders.  The court sentenced him to confinement at hard labor for 30 days and a forfeiture of pay.  The approving authority approved a lesser sentence by suspending the confinement for 
30 days. 

5.  On 27 March 1963, also while still in training at Fort Ord, CA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ)) for failing to obey an order.  

6.  He was assigned to the 2nd Battalion, 501st Infantry, Fort Bragg, NC.  While there, he accepted NJP under the provisions of Article 15 of the UCMJ on:

* 12 September 1963, for failing to go at the time prescribed to his appointed place of duty
* 1 October 1963, for disrespecting a noncommissioned officer
* 12 November 1963, for breaking restriction

7.  On 30 November 1963, he was convicted by a special court-martial of one specification of larceny of a radio, the property of another Soldier.  The court sentenced him to confinement at hard labor for 30 days, a forfeiture of $55.00 pay for 2 months, and a reduction to private/E-1.  The convening authority approved a lesser sentence by suspending the confinement for 2 months.

8.  On 8 January 1964, he was again convicted by a special court-martial of one specification of going from his appointed place of duty without authority and one specification of failing to go at the time prescribed to his appointed place of duty. The court sentenced him to confinement at hard labor for 2 months and a forfeiture of $55.00 pay per month for 2 months.  The convening authority approved the sentence. 

9.  The complete facts and circumstances surrounding the applicant's discharge action are not available for review with this case.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 11 May 1964 in accordance with Army Regulation 635-208 (Undesirable Habits or Traits of Character, Enlisted Men, Discharge), for unfitness, with an Undesirable Discharge Certificate, in pay grade E-1.  He completed 1 year, 3 months, and 23 days of creditable active service and he had 49 days of lost time.

10.  Item 11c (Reason and Authority) of the applicant's DD Form 214 contains the Separation Program Number (SPN) of 28B.  Army Regulation 635-5 (Separation Documents), in effect at the time, shows the SPN of 28B was authorized for separations under the provisions of Army Regulation 635-208 with the following associated narrative reason: "Unfitness - Frequent involvement in incidents of a discreditable nature with civil or military authorities."

11.  On 11 January 1967, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable.  Accordingly, the ADRB denied his petition for an upgrade of his discharge.

12.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, 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 an honorable discharge.

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

	a.  paragraph 3-7a, 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, 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 record is void of all the facts and circumstances concerning the events that led to his discharge from the Army.  However, his record contains a DD Form 214 which shows he was discharged on 11 May 1964 under the provisions of Army Regulation 635-208 by reason of unfitness with an Undesirable Discharge Certificate.

2.  His available records reveal four instances of NJP and three court-martial convictions.  It appears based on his continued misconduct his chain of command found him unfit for continued military service and initiated separation actions against him.  

3.  In the absence of evidence to the contrary, it must be presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time and there is no indication of procedural errors that would have jeopardized his rights.  Additionally, it must also be presumed that the character of the discharge is commensurate with the applicant's overall record of military service.

4.  Although the applicant was 17 years and 7 months of age upon his induction, he was over 18 years of age when he was convicted of larceny.  In any case, there is no evidence his misconduct was caused by his age or that he was any less mature than other Soldiers of the same age who successfully completed their service commitment.  Likewise, there is no evidence his misconduct was caused by racism or that his multiple NJPs and court-martial convictions were due to his race.   

5.  Based on his history of misconduct, his service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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)                                         AR20120019114



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120019114



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1