BOARD DATE:	  2 January 2014

		DOCKET NUMBER:  AR20130006652 


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 a general discharge.

2.  The applicant states:

* he is not protesting any outcome
* he puts himself at the Board's mercy
* since his discharge, he and his wife have been together for 50 years and raised two kids
* he is very sorry for his past
* he was hospitalized in 1957 in Korea with hepatitis and yellow jaundice 

3.  The applicant provides a letter from his wife.

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 was born on 25 August 1940.  He enlisted in the Regular Army on 13 December 1957 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 133.00 (armor intelligence specialist).  On 30 May 1960, he was honorably discharged for immediate reenlistment.  He reenlisted on 31 May 1960 for a period of 3 years.  

3.  Between October 1960 and March 1961, he accepted three nonjudicial punishments (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for:

* being absent from bed check
* being drunk and disorderly in the mess hall
* being absent without leave for 45 minutes

4.  On 7 July 1961, he was convicted by a special court-martial of assaulting a private first class and staff sergeant and disobeying two lawful orders.  He was sentenced to confinement at hard labor for 6 months and to forfeit $75.00 pay per month for 6 months.  On 14 July 1961, the convening authority approved the sentence.

5.  In August 1961, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The unit commander stated:

	a.  he had been in the unit for a period of 12 months during which time he  has had three Article 15s and one special court-martial.

	b.  he had been repeatedly counseled with regard to his conduct and efficiency, but with negative results.

	c.  on 20 June 1961, he underwent a psychiatric examination and the psychiatrist indicated that further rehabilitation efforts would probably be effective, retention in the service on probation, and there was no psychiatric impediment to separation under Army Regulation 635-208 for misconduct.

	d.  an allegation was made that he had forced another person to perform a homosexual act with him.  This was investigated, but the parties concerned refused to make statements, and there was insufficient evidence to warrant charges.
6.  On 24 August 1961, after consulting with counsel and being advised of his recommended separation for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

7.  On 31 August 1961, the separation authority approved the recommendation for separation under the provisions of Army Regulation 635-208 and directed the issuance of an Undesirable Discharge Certificate.

8.  On 3 October 1961, he was discharged accordingly for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He completed 3 years, 6 months, and 23 days of total active service with 90 days of lost time.

9.  On 28 January 1974, the Army Discharge Review Board denied his request for an honorable discharge.

10.  He provides a letter, dated 31 March 2013, from his wife who attests:

* the applicant has been a model husband to her
* they have been married for 47 years
* they raised two daughters
* realizing how stupid he was as a young Soldier, he sincerely regrets his dumb actions in the service 

11.  Army Regulation 635-208, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness.  Individuals would be discharged by reason of unfitness with an undesirable discharge when it had been determined that an individual's military record was characterized by discredit, including frequent incidents of a discreditable nature with civil or military authorities.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b provides 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 wife implies he was a young Soldier; however, age is not a sufficiently mitigating factor.  Although he was 17 years of age when he enlisted, he successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military term of service.  In addition, he completed almost 3 years of service prior to his misconduct.

2.  The character reference letter submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

3.  His record of service during his last enlistment included three NJPs, one special court-martial conviction, and 90 days of time lost.  As a result, his record of service was not satisfactory.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

5.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant a general 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)                                         AR20130006652





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ABCMR Record of Proceedings (cont)                                         AR20130006652



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