BOARD DATE:  25 June 2013

		DOCKET NUMBER:  AR20120022101 


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, an upgrade of his discharge under other than honorable conditions (UOTHC).

2.  The applicant states that he was young and foolish to get out of the Army and married in his country of birth.  He did not realize the consequences of his actions.  He made false statements and lied to the investigators.  There was no court-martial, only a decision by the Inspector General.  He has no record of any kind, has been married for 43 years, raised two step-children, and lived his life as a good American citizen.

3.  The applicant provides no additional 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, a German-born naturalized citizen, was 22 years old when he enlisted in the Regular Army on 4 October 1961.  He held military occupational specialty 760.00 (Supply Clerk).

3.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on:

	a.  15 April 1963, for making a false entry on the DA Form 647 (Official Personnel Register), and

	b.  26 August 1963, for failing to be present in his billets for bed check.

4.  A U.S. Army Europe Form 3087 (Report of Psychiatric Evaluation), dated 7 October 1963, shows in:

	a.  item II (Diagnosis):  "Sexual deviate, manifested by exhibitionism";

	b.  item V (Findings and Conclusions):  "For undefined reasons this individual has an impulsive tendency to expose himself for the purpose of an obscure sexual gratification"; and

	c.  item VI (Recommendation):  "While the final decision rests with his command, I would suggest that this man be separated from the Service under appropriate administrative regulations as expeditiously as possible.  He should not be reinstated.  It is felt that disciplinary action has very little to offer."

5.  On 23 October 1963, the applicant's immediate commander recommended the applicant's discharge from military service under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).  The commander noted that the applicant's attitude and reliability had been a constant problem.  He had four NJP's and had been charged with indecent exposure.  The commander recommended the issuance of an undesirable discharge.

6.  The applicant acknowledged he had been counseled and advised of the contemplated separation action and that he was afforded the opportunity to request counsel but elected to decline.  He also acknowledged he understood if a discharge UOTHC were issued to him, he would be deprived of many or all rights as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.  He waived his right to a board of officers and to appear before a board of officers, and declined to submit a statement in his own behalf.

7.  The applicant's chain of command recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

8.  On 29 November 1963, the separation authority approved the applicant's separation for unfitness and directed the issuance of an Undesirable Discharge Certificate.  On 26 December 1963, the applicant was discharged for frequent incidents of a discreditable nature.

9.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows his character of service as UOTHC.  He completed 2 years, 2 months, and 23 days of creditable active military service.

10.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge.

11.  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:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction; an established pattern of shirking; and/or 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 an honorable or a general discharge.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a states 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 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because he was young and foolish and did not realize the consequences of his actions.  He admits he made false statements and lied to the investigators.

2.  He was over 22 years old when he enlisted in the Army.

3.  The applicant's administrative separation was accomplished in compliance with all requirements of law and applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the narrative reason were therefore appropriate and equitable.

4.  The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards.  He had four NJP's and had been charged with indecent exposure.  The commander recommended the issuance of an undesirable discharge.

5.  He has not shown error, injustice, or inequity for the relief he requests.  Therefore, the applicant 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)                                         AR20110020137



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ABCMR Record of Proceedings (cont)                                         AR20120022101



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