IN THE CASE OF
BOARD DATE: 12 August 2014
DOCKET NUMBER: AR20130022178
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. He states he injured himself on an unknown date in airborne school. He maintains that he wanted to do well in the Army, but he was afraid so he went absent without leave (AWOL) while in basic training. He adds he went AWOL again when his grandmother passed away and the Army would not allow him to go home.
3. He does not provide any additional evidence.
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 9 November 1962.
3. His disciplinary history includes acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on 30 August 1963 for being AWOL from 9 to 26 August 1963.
4. On 16 December 1963, he was convicted by a special court-martial (SPCM) of being AWOL from 31 August to 24 October 1963. He was sentenced to confinement at hard labor for 3 months. On 6 February 1964, the unexecuted portion of his sentence to confinement at hard labor for 3 months was suspended until 15 March 1964, at which time, unless the suspension was sooner vacated, the unexecuted portion of the suspended sentence would be remitted without further action.
5. On 17 April 1964, SPCM Orders Number 122, dated 17 April 1964, vacated his sentence to confinement and the unexecuted portion of the sentence to confinement was duly executed.
6. On 21 May 1964, he was convicted by an SPCM of being AWOL from
5 March to 13 April 1964. He was sentenced to confinement at hard labor for 6 months. On 12 August 1964, the unexecuted portion of his sentence to confinement at hard labor for 6 months was remitted.
7. The applicant's record is void of the specific facts and circumstances surrounding his discharge. However, his record contains a Commanding Officers Inquiry, dated 3 April 1964, which shows the commander certified that an inquiry into the probable causes or motives concerning the applicant's AWOL was made and no probable cause or motive could be determined.
8. The applicant's record also contains a DD Form 214 that shows he was discharged on 14 August 1964 under the provisions of Army Regulation 635-208 (Personnel Separations-Discharge-Undesirable Habits and Traits of Character), with an undesirable discharge. He had completed a total of 11 months and 4 days of active service with 307 days of lost time.
9. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
10. Army Regulation 635-208, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness, including undesirable habits and traits of character. It provided that a board of officers would convene for the elimination of enlisted personnel having undesirable habits and traits of character. A recommendation for discharge because of undesirability would be made in the case of an enlisted person who repeatedly committed petty offenses not warranting trial by court-martial. When discharged because of undesirable habits or traits of character, an Undesirable Discharge Certificate was normally considered appropriate.
11. 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 contends, in effect, that his injury in airborne school, death of his grandmother, and the Army's refusal to allow him to go home led to his periods AWOL and subsequent discharge action. However, in a letter dated
3 April 1964, the commander stated that he conducted an inquiry into the applicant's AWOL and no probable cause or motive could be determined for his AWOL. Therefore, his argument concerning the circumstances that led to his indiscipline cannot be supported by the available evidence.
2. Although specific facts and circumstances surrounding his discharge are not available for review, the presumption of regularity must be applied. He must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. He has failed to submit evidence that would satisfy that requirement.
3. The applicant's record of indiscipline which includes an Article 15, two SPCM convictions, and 307 days of lost time due to being AWOL and in confinement does not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to 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) AR20130022178
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130022178
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2006 | 20060001401C070205
On 13 May 1964, the applicant’s commander submitted a recommendation to discharge the applicant from the service under the provisions of Army Regulation 635-208 for unfitness. The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to...
ARMY | BCMR | CY2010 | 20100000292
The applicant was discharged in pay grade E-1 on 10 July 1964 under the provisions of Army Regulation 635-208 with an undesirable discharge. He has provided no evidence to show that he deserved an honorable or a general discharge at that time of separation or now. _______ _ 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.
ARMY | BCMR | CY2013 | 20130007596
On 12 May 1966, the applicant was discharged under the provisions of Army Regulation 635-208, due to unfitness, with an undesirable discharge. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. ABCMR Record of Proceedings (cont) AR20130007596 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont)...
ARMY | BCMR | CY2014 | 20140019661
The applicant's record shows he was born on 25 January 1945 and enlisted in the Regular Army on 27 August 1963 at the age of 18 years and 7 months. On 13 January 1966, the applicant was discharged under the provisions of Army Regulation 635-208, with an undesirable discharge. The applicant provided his birth certificate showing he was born in April 1947, which indicates at the time he enlisted in the RA he was 16 years and 4 months of age.
ARMY | BCMR | CY2011 | 20110001045
At the time he had completed 4 years, 5 months, and 3 days total active service. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. The evidence of record shows the applicant was convicted at a special court-martial and also at three summary courts-martial.
ARMY | BCMR | CY2008 | 20080007501
IN THE CASE OF: BOARD DATE: 23 September 2009 DOCKET NUMBER: AR20080007501 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
ARMY | BCMR | CY2009 | 20090013360
On 10 December 1964, the applicant was discharged under the provisions of Army Regulation 635-208, due to unfitness, with an undesirable discharge. Army Regulation 635-200 paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
ARMY | BCMR | CY2010 | 20100008696
On 9 May 1958, the applicant's commander submitted a request that the applicant appear before a board of officers convened under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Undesirable Habits and Traits of Character) to determine if he should be separated from the Service. On 6 June 1958, the separation authority approved the report of proceedings of the board of officers, ordered the applicant's discharge, and ordered that he be furnished an Undesirable...
ARMY | BCMR | CY2001 | 2001059182C070421
The applicant requests correction of military records as stated in the application to the Board and as restated herein. On 6 December 1957, the board of officers recommended that the applicant be discharged from the service under the provisions of Army Regulation 635-208 because of unfitness due an established pattern of shirking with an undesirable discharge. However, his records contain a Case Report and Directive from the Army Discharge Review Board (ADRB) which indicates that the...
ARMY | BCMR | CY2013 | 20130000884
The applicant requests an upgrade of his discharge under other than honorable conditions. A DD Form 458 (Charge Sheet), dated 12 April 1965, shows he was charged with being AWOL from 3 to 8 April 1965. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.