BOARD DATE:	  11 December 2014

		DOCKET NUMBER:  AR20140005496 


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 under other than honorable conditions discharge to an honorable discharge
* correction of his period of active duty service
* his military records to be found

2.  He states, in effect:

* his active duty service is incorrect; he should have additional active duty service that is missing
* his statement of service is blank

3.  He provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer of Discharge)
* National Archives (NA) Form 13165 (Reply Regarding Social Security Inquiry)

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 submitted an NA Form 13165, which indicates he did not perform any active duty training prior to 1965.  Correction of this document is not within the purview of this Agency nor is this Agency the custodian of the applicant's military records.  Therefore, this document will not be discussed any further in this record of proceedings. 

3.  He enlisted in the Regular Army on 10 August 1965.

4.  The applicant's record includes a disciplinary history which shows acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following offenses:

* failing to go to the appointed place of duty at the time prescribed on
28 September 1967 and 14 and 15 December 1967
* being absent without leave (AWOL) from 19 November to 24 November 1965 and from 6 to 7 February 1967 

5.  The applicant's record contains:

   a.  Summary Court-Martial Order (SCMO) Number 3, dated 11 December 1965, which shows he pled guilty and was found guilty of:
   
   	(1)  failing to go at the time prescribed to his appointed place of duty on   4 December 1965; and 

   	(2)  breaking restriction on 4 December 1965.

   b.  SCMO Number 11, dated 12 April 1967, which shows he pled not guilty but was found guilty of failure to go at the time prescribed to his appointed place of duty on 28 March 1967.
   
   c.  SCMO Number 15, dated 4 May 1967, which shows he pled not guilty but was found guilty of failing to go at the time prescribed to his appointed place of duty on 22 April 1967. 
   d.  SCMO Number 2, dated 9 January 1968, which shows he pled guilty and was found guilty of failing to go at the time prescribed to his appointed place of duty on 26 December 1967. 

6.  His record contains a DD Form 458 (Charge Sheet), dated 5 February 1968, which shows that on 23 November 1967 the applicant was charged with:

	a.  wrongful possession of 0.05 grams of a habit-forming drug, heroin; and 

	b.  wrongful use of a habit-forming drug, heroin.

7.  On 26 January 1968, the psychiatrist at the Andrew Rader Clinic, Fort Myer, Virginia cleared the applicant for any administrative actions deemed necessary by his chain of command.

8.  On 20 February 1968, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), for unfitness with an Undesirable Discharge Certificate.  The applicant's immediate commander stated the discharge was being recommended due to possession and use of narcotics (alleged).  

9.  On the same date, the applicant's immediate commander advised him that he was recommending that the applicant be separated under the provisions of Army Regulation 635-212 for unfitness.

10.  The applicant acknowledged that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of Army Regulation 635-212 for unfitness.  The applicant waived consideration of his case by a board of officers and waived a personal appearance.  The applicant indicated he was submitting statements in his own behalf and that he waived representation by counsel.  The applicant acknowledged that he understood as a result of the issuance of an undesirable discharge he could expect to encounter substantial prejudice in civilian life, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He did not submit a statement on his own behalf.

11.  The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 due to unfitness with the issuance of an Undesirable Discharge Certificate.  On 22 March 1968, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed 2 years, 5 months, and 12 days of total active service with 53 days of time lost.
12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and 
(6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time provides in:

	a.  paragraph 3-7 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.  

15.  Army Regulation 635-5 (Separation Documents), in effect at the time, establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he served in an active duty status from 
10 August 1965 to 22 March 1968.  There is no evidence that he completed any service prior to this period or after this period. 

2.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-212, for unfitness.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

3.  He received four Article 15s, four summary court-martial convictions, and he was charged with possessing and using a habit-forming drug.  He also had 
53 days of time lost due to being AWOL.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  The applicant's DD Form 214 provides the individual with a documentary record of their military service.  His DD Form 214 shows he completed 2 years,
5 months, and 12 days of total active service with 53 days of time lost.  Therefore, he should provide a copy of his DD Form 214 to the National Personnel Record Center (Military Personnel Records) 9700 Page Avenue, St. Louis, MO  63132-5100 for proof of his active duty service and assistance in locating his military records, if he had any service prior to his August 1965 enlistment in the Regular Army.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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 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)                                         AR20140005496



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ABCMR Record of Proceedings (cont)                                         AR20140005496



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