IN THE CASE OF:  

		BOARD DATE:  1 August 2013

		DOCKET NUMBER:  AR20130000239 


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 his undesirable discharge be upgraded to an honorable discharge.
 
2.  The applicant states that while on leave he was playing around with another sergeant in Italy.  They untied a boat and let it sail away.  When they were apprehended (by civilian authorities) he found out it was a Navy ship.  His command was not notified for several days and reported him absent without leave (AWOL).  When he was returned to his command he was discharged under conditions other than honorable.  He was punished by civilian authorities and to be given an undesirable discharge is double jeopardy.  He would have returned to his unit in a timely manner had he not been in jail.  He understands what he did was juvenile and he served time in jail because of it.  This is something that has bothered him since he was discharged.  He is now under hospice care and would like to see his discharge upgraded prior to his demise.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 enlisted in the Regular Army on 8 November 1960 and reenlisted on 15 November 1962.  He initially held military occupational specialty 112.10 (Prime Mover Driver) and later reclassified to 11C (Indirect Fire Infantryman).  He served in Korea and Germany.

3.  His record shows:

	a.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on 5 October 1963 of being AWOL from 5 September to 24 September 1963. 

	b.  A 12 January 1965 special court-martial found him guilty of being AWOL from 15 June to 9 November 1964.

	c.  A 28 June 1965 special court-martial found him guilty of being AWOL from 30 May to 21 June 1965 and carrying a concealed weapon on 29 May 1965.

4.  A U.S. Army Europe Form 3087 (Report of Psychiatric Evaluation), dated 
16 July 1965, shows in:

	a.  item II (Diagnosis):  Passive Aggressive Reaction  3211.

	b.  item III (Pertinent History):  "Pvt C___ recently received a Court-Martial for being AWOL, which brings his military disciplinary records to a total of 3 Courts-Martial and two Articles XV [sic].  The subject states that his AWOL offenses were accomplished as a means to an end; namely, that of obtaining a discharge from the Army.  He related a history of inability to accept authority, resentment of his superiors, and a youthful idealism which conflicts with the close standards of military conformity.  Although he does not really want a 208 discharge from the service, he says he cannot return to duty.  He has no motivation to remain in the service; promising more administrative difficulty in the future if he is retained."

	c.  item IV (Mental Status):  "Subject EM is oriented, rational and coherent.  He gives no evidence of abnormal thinking or behavior suggesting psychosis."

	d.  item VI (Recommendation):  "In this examiner's opinion, this individual is a candidate for separation UP [under provisions] of AR 635-208."

5.  On 23 June 1965, 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 was doing a good job and had been made an acting Sergeant, but had lost the acting sergeant and became heavily in debt. The applicant had gone AWOL and been apprehended.  He had other incidents of AWOL, missing bed check and he remained heavily in debt.  He later went AWOL from sometime in September 1964 and remained so until December 1964.  He was transferred to another company for rehabilitation where he did a fairly good job until on or about 29 May 1965 when he was picked up by the courtesy patrol and turned over to the military police.  He was involved in causing a disturbance and carrying a concealed weapon.  He was placed on administrative restriction which he broke and went AWOL.  He was apprehended approximately a month later and given a special court-martial.  The applicant has been given more than ample opportunity to rehabilitate himself to no avail.  He should be eliminated from the service.

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 an undesirable discharge was 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 30 September 1965, the separation authority approved the applicant's separation for unfitness and directed the issuance of an Undesirable Discharge Certificate.  On 21 October 1965, the applicant was discharged.

9.  His DD Form 214 shows his character of service as Under Conditions Other Than Honorable.  He completed a total of 4 years and 8 days of creditable active duty 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 evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards.  He had at least two special courts-martial and one NJP.  His commander recommended his discharge and his chain of command recommended an undesirable discharge.

2.  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.

3.  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)                                         AR20130000239



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