BOARD DATE:	  10 June 2014

		DOCKET NUMBER:  AR20130015975 


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 upgrade of his undesirable discharge.

2.  The applicant states he doesn't feel he was given a fair chance to get a good discharge.  He states that during the summer of 1959 he tried unsuccessfully to be reassigned close to his home because of problems his family was having.  He states he was called into the company commander's office and asked if he wanted to receive an early discharge and go home.  At the time, a chance to go home sounded good so he replied "yes."  He went through the normal process of preparing for discharge, and then at the very end he, along with others, fully understood.  They were separated from the larger group and taken to a different room.  They were told to change to civilian clothes, received their pay, and given discharge orders.  They were told they were being given "undesirable discharges" and that they would not be eligible for veteran's benefits.  He adds that he is not making excuses for his behavior but he never failed to do his duty.     

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* copy of his official military personnel file 

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.  On 16 July 1958, the applicant enlisted in the Regular Army.  The highest rank he held was private first class/pay grade E-3.

3.  His record contains a DD Form 493 (Extract of Military Records of Previous Convictions).  This document shows that on:

* 7 November 1958, he was convicted by a summary court-martial of being absent without leave (AWOL) from his unit from 20 to 24 October 1958
* 9 December 1958, he was convicted by a summary court-martial of operating a motor vehicle at Fort Leonard Wood, MO at 45 miles per hour in a lawfully posted speed limit zone of 35 miles per hour
* 23 April 1960, he was convicted by a summary court-martial of being disrespectful in language toward his superior noncommissioned officer

4.  On 10 June 1960, he underwent a psychiatric evaluation.  The evaluation showed he was diagnosed with an emotional instability reaction, chronic, moderate to severe that existed prior to service.  The evaluation found that he was capable of understanding and participating in separation board proceedings and that he was totally unmotivated for military service and should be separated from the Army via administrative action.

5.  On 14 June 1960, his platoon sergeant stated the applicant had been a continuous source of trouble to his superiors and that he rebelled at the slightest order given by his superiors.  He further stated that the applicant had expressed a strong desire to be separated from the service regardless of the consequences.  His platoon leader provided a similar account of the applicant's behavior.  

6.  The record contains a memorandum, dated 15 June 1960, signed by the applicant wherein he acknowledged he had been notified by his commander that he was recommending him for discharge under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness).  He also acknowledged that an undesirable discharge could be issued and that he had been informed of his rights.
   a.  He further acknowledged he was afforded the opportunity of requesting counsel; however, he declined the opportunity.  He also elected not to submit a statement in his own behalf.
   
   b.  He also indicated he understood that if an undesirable discharge was issued to him that such a discharge would be under conditions other than honorable and that as a result of such a discharge he could be deprived of many or all rights as a veteran under both Federal and state laws and that he may expect to encounter substantial prejudice in civilian life in situations where the type of service rendered in any branch of the Armed Forces or the type of discharge received therefrom could have a bearing.  He acknowledged that he was signing the statement of his own free will.

7.  On 17 June 1960, his commander recommended the applicant's separation from the service under the provisions of Army Regulation 635-208 with an Undesirable Discharge Certificate.  He stated the applicant was very disrespectful toward his superiors.  He stated he had heard the applicant condemn his squad leader, platoon sergeant, platoon leader, and almost every officer or NCO he ever worked for.  He had refused to comply with standing operating procedures (SOP’s) because "his way of doing things was just as good."  He got along very poorly with his fellow Soldiers and had started fights with them several times.  If he was not given his way he rebelled.

8.  On 18 June 1960, an intermediate commander recommended approval of the applicant's separation with an Undesirable Discharge Certificate.  He stated that the applicant had been transferred to multiple units but efforts by all those units proved futile. 

9.  On 28 June 1960, the separation authority, a major general, directed the applicant's discharge from the service under the provisions of Army Regulation 635-208 and directed the applicant be furnished a DD Form 258A (Undesirable Discharge Certificate). 

10.  On 21 July 1960, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 
635-208 with a separation program number of 28B (unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities) and issuance of an Undesirable Discharge Certificate.  This DD Form 214 also shows he completed 2 years of net active service with 5 days of time lost.

11.  There is no indication in the available records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 
15-year statute of limitations.
12.  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.

13.  Army Regulation 635-200 (Personnel Separations), 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.

14.  Army Regulation 635-200, 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's contentions are noted.

2.  He was discharged under the provisions of Army Regulation 635-208 for unfitness.  His record shows he was convicted on three occasions by a summary court-martial of speeding on post, being AWOL, and being disrespectful in language towards a superior NCO.  Further, statements contained in his record shows he consistently refused to obey his superiors and SOPs despite attempts by multiple units to improve his behavior and performance.  His record shows he had 5 days of time lost.

3.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory. 

4.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to an honorable or 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)                                         AR20130015975



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ABCMR Record of Proceedings (cont)                                         AR20130015975



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