IN THE CASE OF:	  

		BOARD DATE:  8 April 2014

		DOCKET NUMBER:  AR20130011642 


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 under other than honorable conditions discharge.

2.  The applicant states he was assigned to the Military Police (MP) on temporary duty and was serving as an MP.  He fired two rounds from his weapon over the heads of two military personnel who failed to halt upon his command after pushing him.  After this incident he was placed in the stockade.  He was never issued a discharge certificate but he was told he received an undesirable discharge.  He would like the Army Board for Correction of Military Records (ABCMR) to explain "what conditions other than honorable" he committed.  

3.  The applicant provides 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 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 20 January 1964 and held military occupational specialty (MOS) 36A (Wireman).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  His record contains a DA Form 2627 (Summarized Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 5 November 1964 which shows he accepted nonjudicial punishment (NJP) for wrongfully sitting down on a walking post while on guard duty.

4.  His record contains an Army Europe (AE) Form 3133 (Unit Commander Report for Psychiatric Examination) dated 16 June 1965.  This form shows his company commander requested the applicant be evaluated for separation from military service in accordance with (IAW) Army Regulation 635-208 (Personnel Separations-Discharge Unfitness).  His commander stated:

	a.  In November 1964 that applicant was brought before his company commander because he was found sleeping at his guard post.  During the previous two months the applicant had been a member of the drill team.  However, the drill team sent him back to his unit for conduct issues and since his return he had been a constant problem.  

	b.  He was never able to do the jobs he was given.  He did not seem to have any friends in the company.  Supervisors gave him repeated opportunities to correct himself but he continued to be an unproductive individual.  Additionally, he had worked in almost every section in the company in an attempt to find him a position to suit his ability.  However, there was not sufficient work in the company for his MOS (Telephone Switchboard Operator).  The applicant was a completely uncooperative Soldier and his commander felt he was of no further use to the military service.  

	c.  He had not been previously considered for separation; however, his commander indicated he was pending a court-martial for disobeying the lawful orders of a commissioned officer and a senior noncommissioned officer and two incidents of being absent without leave (AWOL)

5.  His record contains two DD Forms 458 (Charge Sheet) dated 17 June 1965 which show court-martial charges were preferred against him for disobeying the 

lawful orders of a commissioned officer and a senior noncommissioned officer and being AWOL on 14 June 1965.  He refused NJP under the provisions of Article 15 of the UCMJ in favor of a court-martial.

6.  Summary Court-Martial Order Number 1, issued by Headquarters, 703rd Maintenance Battalion, 3rd Infantry Division, Germany, on 13 July 1965 shows he was found guilty of disobeying the lawful orders of a commissioned officer and a senior noncommissioned and being AWOL.  His sentence was adjudged on 
28 June 1965.  The sentence included confinement at hard labor for 1 month and forfeiture of $57.20 for 1 month.  On 13 July 1965, the sentence was approved and ordered duly executed.  

7.  His record contains an AE Form 3133 dated 16 August 1965.  This form shows his company commander requested the applicant be evaluated for separation from military service IAW Army Regulation 635-208.  In addition to the comments his commander made on the AE Form 3133, dated 16 June 1965, his commander stated:

	a.  The applicant had been placed in the stockade on 28 June 1965.  Upon returning to the company on 22 July 1965, he went AWOL on three separate occasions.  Since his return from the stockade he has worked for the first sergeant (1SG), but would not do any work.  

	b.  Other personnel in the unit were "fed up" with the applicant.  Soldiers and supervisors have attempted to assist the applicant on many occasions and he refused help.  Transferring the applicant to another unit would serve no purpose. He had worked in almost every section the unit had to offer. 

	c.  He had previously received NJP under the provisions of Article 15 of the UCMJ and had a court-martial conviction.  The applicant was of no further use to the U.S. Army and would be a constant burden regardless of assignment or situation.

8.  His record contains an AE Form 3087 (Report of Psychiatric Evaluation), dated 19 August 1965.  The examining medical official stated:

	a.  The applicant was referred to the clinic by his commanding officer for a pending board action IAW Army Regulation 635-208.  The applicant stated that he "wants out of the Army" because he cannot get along with anyone.  He admitted to receiving two Articles 15 and one summary court-martial.  He is currently pending a special court-martial for three charges of AWOL and one charge of assault, which allegedly occurred after he was confined in the stockade.  The applicant's commanding officer stated that the applicant was of no further use to the Army and would be a burden regardless of assignment or situation.  

	b.  The applicant's mental status shows he was alert, coherent, oriented and cooperative during the examination.  His affect was appropriate, his speech patterns were normal, and his thought process were intact.  There was no indication of delusions, hallucinations, gross organicity, intellectual impairment, or overt psychosis.

	c.  The medical official stated that rehabilitation efforts were not likely to be successful.  The medical official indicated that the applicant was immature and had no motivation for further service.  Furthermore, because of his negative attitude and recurrent misconduct it was recommended that he be separated.  The medical official also stated that the applicant did not have any psychiatric disorders/illnesses and was responsible for his own actions.  The medical official recommended adjudication of court-martial charges and stated there was no psychiatric contradiction to any administrative action deemed appropriate by the command including separation IAW Army Regulation 653-208.

9.  His record contains four DA Forms 19-24 (Statement) ranging in dates from 13 September 1965 to 15 November 1965.  All of these statements indicate that the applicant was assigned to various sections and positions within the unit, refused to complete assigned duties, disobeyed direct orders, refused to show up to formations or work, was not amenable to counseling, and incited fights among his fellow Soldiers.  However, the most relevant of these statements was issued by his company commander, on 15 November 1965.  HIs commander, captain (CPT) RJB, stated:

		(a)  On 1 December 1964, the applicant had been attached to the drill team.  On 15 February 1965, he entered the drill team's billets at 0300 hours, in a drunken state, and woke up sleeping personnel.  The 1SG spoke to the officer in charge of the drill team about this incident and both individuals give the applicant a direct order to stay out of the drill team’s billets unless he had express permission.  Nevertheless, the applicant was found in the billets, causing trouble 
late at night, twice during the month of April.  On 27 May 1965, the applicant was seen sneaking into the drill team’s billets again.  He was offered NJP under the provisions of Article 15 of the UCMJ but refused; therefore, this act was referred for court-martial.  On 1 June 1965, the drill team released him from his attachment and returned him to the company for uncooperativeness and constant minor problems.  


		(b)  On 14 June 1965, the applicant missed both bed-checks.  He was offered NJP under the provisions of Article 15 of the UCMJ for this act but he refused.  This act was also referred for court-martial.  The applicant was convicted by a summary court-martial for disobeying the lawful orders of a commissioned officer and a senior noncommissioned officer and being AWOL.  

		(c)  When he returned from the stockade on 26 July 1965 he was found to be AWOL during the first bed-check.  As a result he was restricted to the company area pending special court-martial action.  

		(d)  On 31 July 1965 he departed the company area AWOL and did not return until 3 August 1965.  When he returned his bunk was moved into the change of quarters (CQ) room and he was to sleep and check in with the CQ every hour.  He did not check in with the CQ at 1800 hours on 7 August 1965 and was picked up by MPs at approximately 1400 hours on 9 August 1965.  Upon his return from AWOL he was ordered to stay with the CQ at all times.

		(e)  On 10 August 1965, after returning from evening chow, he attacked specialist five (SP5) JCL for no apparent reason.  The applicant later stated he attacked SP5 JCL for reporting him to the MPs after seeing him off post on 
9 August 1965.  The applicant was also AWOL from 12-13 August 1965 and 
16-18 August 1965.

10.  Special Court-Martial Order Number 7, issued by Headquarters, 703rd Maintenance Battalion, 3rd Infantry Division, Germany, on 30 August 1965 shows he was found guilty of being AWOL from 26-28 July 1965, 1-3 August 1965, and 8-9 August 1965.  He was also found guilty of assaulting SP5 JCB by striking him with his hands.  His sentence was adjudged on 20 August 1965.  The sentence included confinement at hard labor for 6 months and forfeiture of $50.00 per month for 6 months.  On 30 August 1965, the sentence was approved and ordered duly executed.  

11.  His record contains a conduct report, issued by the U.S. Army Europe and North Baden District Stockade, Germany, on 1 November 1965 which stated the applicant had been confined at that facility since 2 September 1965.  Since his arrival and up to the current date, his conduct, attitude, and cooperation have all been rated as unsatisfactory.  The confinement officer writing the letter stated he believed that the applicant made no attempt to rehabilitate himself and would be of little further use to the Army.  This opinion and the aforementioned rating of unsatisfactory was based, in part, on the following incidents:

	a.  8 September 1965 - (Disrespect to cadre and failure to obey instructions): He was told to clean the floor and refused and then called a cadreman a "mother fxxxxx."

	b.  1 October 1965 - (Out of place):  He was found in the latrine when he should have been working.

	c.  28 October 1965 - (Refused to work and threatening cadre):  He refused to work in the mess hall and threatened to "get" the Mess Steward if he was reported.

12.  On 8 January 1966, his commander recommended him for elimination IAW Army Regulation 635-208.  His commander stated the applicant had the mental capacity to absorb training and could do a credible job if and when he personally desired to do so.  His commander recommended an undesirable discharge.  The intermediate levels of the chain of command supported the commander's recommendation.

13.  His record contains a statement, dated 11 January 1966, wherein he stated he had been counseled and advised of the basis for the proposed separation IAW Army Regulation 635-208.  He indicated that he had been furnished with a copy of his commanding officer's report, copies of statements submitted to support the recommendation for elimination, and the names of all perspective witnesses to appear or submit statements to be used against him.  

	a.  He stated that he had been afforded the opportunity to request counsel but declined that opportunity.  He did not request a hearing before a board of officers, and understood that if he waived the board hearing and the convening authority directed discharge he would not receive another opportunity to appear before the board of officers before being discharged.  He stated that he did not desire to submit a statement in his own behalf and acknowledged that he had been advised as to the type of discharge he could receive as a result of the separation action.  

	b.  He further acknowledged that he understood that if he received an undesirable discharge that his service would be characterized as under conditions other than honorable and he could be deprived of many or all rights as a veteran under Federal and State law.  He understood that he could expect to encounter substantial prejudice in civilian life as a result of his discharge.

14.  On 9 February 1966, he underwent a separation physical/medical examination.  He was deemed medically and psychiatrically qualified for separation.
15.  On 28 March 1966, the separation authority approved the applicant's discharge action under the provisions of Army Regulation 635-208 and directed the issuance of an undesirable discharge.  On 25 April 1966, the applicant was discharged accordingly.  

16.  His DD Form 214 confirms he was discharged IAW Army Regulation 635-208, by reason of unfitness (frequent involvement in incidents of a discreditable nature with civil or military authorities) with a character of service of under conditions other than honorable with a Separation Program Number (SPN) code of 28B.  This form further shows he completed 1 year, 9 months, and 14 days of net active service, of which 1 year, 3 months, and 23 days was credited as foreign service.  Additionally, this form shows he had 202 days of lost time.

17.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation. 

18.  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:  (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 honorable discharge.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures for the separation of enlisted personnel.

	a.  Paragraph 3-7a provides that 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 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 evidence shows the applicant received NJP, had numerous incidents of AWOL, committed assault, and was convicted by two courts-martial.  Accordingly, his chain of command initiated separation action against him.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or 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)                                         AR20130011642





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130011642



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1