IN THE CASE OF:  	  

		BOARD DATE:  14 October 2014	  

		DOCKET NUMBER:  AR20140003774 


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 an upgrade of his undesirable discharge to a general discharge.

2.  The applicant states:

   a.  He joined the Army when he was 16 years old and had to spend three days at the induction center until he turned 17 so he could be sworn in.  After completing basic training, he attended telephone installation and repair school.

   b.  Nearing completion of the school he was given a weekend pass.  Due to an accident, he returned eight hours late to the post which resulted in him being recycled.

   c.  He began going home on the weekends and there was a time when he stayed 30 days.  Subsequently, he turned himself in, received a court-martial, and was given three months in the stockade.

   d.  Once his time was up, he again went absent without leave (AWOL).  He eventually turned himself in to the authorities and he received six months in Fort Leavenworth where he was incarcerated with murderers, rapists, and other felons.  He felt this was extreme.  He completed his time with no disciplinary problems and at the end of the six months he was given an undesirable discharge and sent home. 

   e.  Since his release from the Army he has been an honest law-abiding citizen and has tried to be responsible in every way possible.  He has worked his entire life and he has been self-employed for 28 years.  He would gladly go back and change what he did and the way he handled things because he has always been ashamed of his discharge, especially since he has matured enough to realize how dumb his actions were. 

3.  The applicant provides a self-authored statement and a copy of 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 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 29 September 1962 on his 17th birthday.

3.  The applicant's record contains a DD Form 493 (Extract of Military Records of Previous Convictions), issued by the Assistant Director of Classification, U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 17 August 1964, which notes the applicant was convicted by a special court-martial:

   a.  On 18 December 1963, for being AWOL from on or about 15 July to        13 August 1963 and from 23 August to 6 November 1963, and for escaping lawful confinement at Fort McPherson on or about 18 November 1963.

   b.  On 23 April 1964, for being AWOL for the period 1 March to 2 April 1964.

4.  On 29 June 1964, he received a psychiatric evaluation.  The medical official diagnosed him with passive-dependency reaction, chronic, moderate, manifested by stubbornness, inefficiency and passive obstructionism and recommended that he be administratively discharged from service under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness).

5.  On 18 August 1964, the applicant's immediate commander notified the applicant that he was being recommended for elimination from the service under the provisions of Army Regulation 635-208.  His commander cited the applicant's court-martial convictions and lack of desire or potential for further military service as the reason for his separation recommendation.  The applicant's immediate commander advised him of his right to counsel, his right to a hearing before a board of officers, and his right to submit statements in his own behalf.  He waived all of his rights related to his separation action.

6.  On 18 August 1964, the applicant's immediate commander recommended the applicant be discharged from military service under the provisions of Army Regulation 635-208, based on the applicant's court-martial convictions and lack of desire or potential for further military service.  

7.  On 27 August 1964, the separation authority approved the applicant's elimination from the Army under the provisions of Army Regulation 635-208 and directed that he be furnished an Undesirable Discharge Certificate.

8.  On 15 September 1964, he was discharged under the provisions of Army Regulation 635-208, with a separation program number of 28B, denoting unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities, and given an undesirable discharge.  The DD Form 214 he was issued for this period of service shows he completed 9 months and 16 days of total active service with 420 days of time lost.  

9.  On 24 July 1974, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

10.  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.

11.  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 applicant's request for an upgrade of his undesirable discharge was carefully considered; however, there is insufficient evidence to grant him the requested relief.

2.  His record reveals a disciplinary history that includes two convictions by court-martial.  Accordingly, his chain of command recommended his elimination from the Army.  His discharge was processed in accordance with applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  Records show the applicant was almost 18 years of age at the time of his offenses.  There is no evidence indicating the applicant was less mature than other Soldiers of the same age who successfully completed their military service.

4.  There is no evidence in the available record, and the applicant failed to provide any substantiating evidence, which shows his extensive misconduct was a result of any reasons except the choices he made.  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)                                         AR20140003774





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ABCMR Record of Proceedings (cont)                                         AR20140003774



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