IN THE CASE OF:	   

		BOARD DATE:	  15 May 2014

		DOCKET NUMBER:  AR20130015584 


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 to a general discharge. 

2.  The applicant states he was:

* recommended for a 208 or 209 discharge based on three questions
* given his discharge for being 30 minutes late and for possession of a straight razor which he kept for self-defense
* discriminated against
* told in 5 years his discharge would be upgraded to a general discharge  

3.  The applicant provides:

* a self-authored statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Special Court-Martial Order Number 72
* miscellaneous service medical and personnel documents

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 16 March 1960.

3.  His record contains a DD Form 789 (Unit Punishment Record) that shows he received nonjudicial punishment on 1 July 1961 for being absent without leave (AWOL) and missing bed check on 26 June 1961.  

4.  His record contains a DA Form 26 (Record of Court-Martial Conviction) that shows on:

* 9 August 1961, he was convicted by summary court-martial of being AWOL from 1 to 2 August 1961
* 13 October 1961, he was convicted by special court-martial of being AWOL from 14 to 15 September 1961 and for possessing a straight razor

5.  Evidence shows on 1 November 1961, his commander initiated administrative separation of the applicant under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness).  The commander stated:

   a.  the applicant had a record of numerous offenses in his unit, all of which indicated a complete lack of desire to properly serve as a Soldier and which indicated his unwillingness to conform within reasonable bounds.

   b.  he had been rotated to different jobs within his platoon and had proven unsatisfactory in all of the assignments.  His military dress, appearance, attitude, and the maintenance of his equipment and area were often unsatisfactory.  

	c.  in addition to the aforementioned punishments, the applicant was being investigated by the German police and the Criminal Investigation Division for being involved in a fight with German Nationals while in an AWOL status.

	d.  the applicant was causing all of the trouble to get out of the Army.  His attitude was such that he did not care how he got out of the service as long as he got out.

6.  The applicant acknowledged he had been offered the opportunity to consult with counsel but he chose not to do so.  He waived his right to a board of officers, and to appear before a board of officers, and declined to submit a statement on his own behalf.

7.  His intermediate commander stated the applicant was a demonstrated malcontent and the creator of intra-unit friction and a constant source of trouble.  He considered the applicant's record of frequent incidents discreditable to the military and his established pattern of shirking justified elimination under the provisions of Army Regulation 635-208 with an undesirable discharge.

8.  On 24 November 1961, the separation authority directed the applicant's discharge from the service under the provisions of Army Regulation 635-208 for unfitness and directed the applicant be furnished an Undesirable Discharge Certificate. 

9.  On 21 December 1961, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 
635-208 (unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities) and given an undesirable discharge.  This form also shows he completed 1 year, 6 months, and 23 days of total active service with 74 days of time lost.

10.  On 23 June 1983 and 27 June 1985, the Army Discharge Review Board denied the applicant's request for an upgrade of his undesirable discharge.

11.  Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included frequent incidents of a discreditable nature with military or civilian authorities.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-209 (Personnel Separations, Discharge, Inaptitude or Unsuitability), then in effect, set forth the policy and procedures for separation of enlisted personnel for inaptitude or unsuitability.  This regulation provided that when it was determined, through proper board action, an individual could not be developed to the extent where he may be expected to absorb further military training and/or become a satisfactory Soldier he will be discharged.  This regulation provided that a Soldier was to be discharged for unsuitability when it was determined he was unsuitable due to character or behavior disorders in schizoid, paranoid, cyclothymic, inadequate or asocial personalities.  This regulation further provided that separation for unsuitability would be accomplished in cases of individuals manifesting such personality patterns when appropriate on the basis of adjustment, behavior or performance in service.  Paragraph 8 directed that an individual discharged for unsuitability would be furnished a General Discharge Certificate.

13.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in his or hers discharge.  The ABCMR will warrant any changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable.

2.  His record shows he was convicted on two occasions by either summary or special court-martial and he accepted nonjudicial punishment on one occasion.  His record shows he had a total of 74 days of time lost.  These frequent instances of indiscipline clearly show his service was unsatisfactory and that he did not meet the standards of acceptable conduct and performance of duty for military personnel.  

3.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  He was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

4.  Although the applicant alleges that he was a victim of discrimination during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention.  Additionally, there is no evidence which shows the applicant's instances of indiscipline were a direct result of the alleged discrimination.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.

5.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to an honorable discharge or to a general discharge under honorable conditions.

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)                                         AR20130015584





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ABCMR Record of Proceedings (cont)                                         AR20130015584



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