IN THE CASE OF:  	  

		BOARD DATE:  9 December 2014	  

		DOCKET NUMBER:  AR20140006831 


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 (UD) to a general or an honorable discharge. 

2.  The applicant states:

   a.  He had extenuating circumstances that led to his discharge characterization.  He prays the Board, after reviewing his circumstances, will see justification to change his discharge to a general or perhaps an honorable discharge.  He is pleading to the Board after 40 years that he did serve honorably for over two years.  He had never been proud of how his military career ended or how that hurt and affected his father, a World War II (WWII) veteran.

   b.  His home life was less than desirable as a youth and at 16 years of age his parents began to forcibly convince him to join the Army, which at 17 years of age he did.  He was able to soldier even though he was emotionally struggling.  After basic combat training and advanced individual training he was assigned to Korea.  He served for 13 months in Korea, stationed first at Camp Blue Lance Valley, then he moved north to the Imjin-Gang River, to the demilitarized zone (DMZ), and he was stationed at Camp Howze, north of the Freedom Bridge.  There he received hostile fire pay for (he believes) 7 of the 13 months he was stationed in Korea.  He manned both guard towers and outposts along the south DMZ border fence as well as within the DMZ.

   c.  He was a member of one of the squads that went out on foot at night, heavily armed, deep within the DMZ to set-up night positions to engage any of the infiltrators who came through from North Korea heading into South Korea (they were termed hunter-killer patrols).  He also served on the quick reaction force for a few months.  This was a reinforcement unit to back up the foot patrol squads that came under hostile fire.  They reinforced in M113 armored personnel carrier tanks.  He returned state-side in September 1968.

   d.  His family became more dysfunctional and fractured after his return, causing him great emotional problems resulting in his poor performance and behavior for the remainder of his military service.  Because of the political and domestic turmoil at the time, President Nixon asked the military to discharge any dissident and problematic military personnel.  He fit those criteria at the time even though his problems were of a personal nature.  He did eventually, after a few years outside the military, find peace and healing.

   e.  He served 13 months faithfully in a combat zone in Korea which was during a period in Korea's history of escalated hostilities between the North Koreans and South Koreans (1966 to 1969).  He was not discharged in relation to or because of a court-martial or an Article 15.  He received an honorable discharge on 17 January 1968, after 13 months of active duty.  He served over 27 months on active duty.  

   f.  Though not military related, he was able to overcome his emotional turmoil and become a productive individual in our society.  He has many worthy accomplishments he could go into, but he knows this is not relevant.  His father, who has passed away, fought in WWII and was always hurt and disappointed by his less than honorable discharge.  He would like to honor his father by at least upgrading his discharge to an acceptable status, one he thinks his father would be proud of his son for achieving.

3.  The applicant provides copies of the following:

* Certification of Military Service
* Special Orders (SO) Number 204
* DD Form 214 (Armed Forces of the United States Report of Transfer of 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army (RA), in pay grade E-1, on 13 December 1966, for 3 years.  He was awarded military occupational specialty (MOS) 36K (wireman). 

3.  On 8 February 1967, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for stealing the property of the Fort Knox Main Exchange.

4.  He departed for Korea on 28 August 1967.  He was advanced to pay grade  E-3 on 1 November 1967.

5.  On 30 December 1967, he accepted NJP under Article 15, UCMJ, for being absent without leave (AWOL) from 28 to 29 December 1967.  His punishment included a reduction to pay grade E-2, a forfeiture of pay of $25.00 for one months, and 14 days of restriction.

6.  He was honorably discharged on 17 January 1968 for the purpose of immediate reenlistment.  His DD Form 214 for this period of service is not available for review with this case.

7.  He reenlisted in the RA on 18 January 1968 for 3 years.  He continued to serve in Korea in MOS 11B (rifleman) from 15 April 1968.  He was again advanced to pay grade E-3 on 3 June 1968.

8.  He provided a copy of SO Number 204, dated 22 July 1968, which shows he was awarded hostile fire pay effective 6 July 1968.

9.  He was reassigned from Korea to Fort Riley, KS, on or about 27 September 1968.

10.  On 14 February 1969, he was convicted by a summary court-martial of two specifications of being AWOL from 14 December 1968 through 4 January 1969 and from 5 to 14 January 1969.  He was sentenced to a reduction to pay grade E-1 and a forfeiture of $73.00 pay for one month. 

11.  On the same day, the convening authority approved only so much of the sentence as provided for a forfeiture of $50.00 pay for one month and a reduction to pay grade E-1 and ordered the sentence executed.

12.  On 30 January 1970, a DD Form 458 (Charge Sheet) was completed by the Commander, U.S. Army Special Processing Detachment, Fort Riley, KS.  The applicant was charged with one specification of being AWOL from 31 May 1969 through 28 January 1970.  On the same day court-martial charges were preferred against the applicant.

13.  A Certificate of Psychiatric Evaluation shows the applicant underwent an examination on 13 February 1970.  He was diagnosed with a drug addiction, chronic, severe, manifested by 2 years of drug abuse - definitely unsuitable for the Army.  The examining psychiatrist stated the applicant was mentally responsible, able to distinguish right from wrong, and to adhere to the right.  He found no disqualifying mental defects sufficient to warrant disposition through medical channels.  He stated the applicant could not be rehabilitated to the extent that he could be an effective Soldier and he was recommending administrative separation under the provisions of Army Regulation 635-212 (Unfitness).  

14.  On 23 March 1970, the Commander, Special Processing Detachment, stated that an interview with the applicant and a search of his records indicated that the best interest of the service would be met by elimination action because of unfitness.  Those offenses resulted in a total of 315 days bad time.  A psychiatric evaluation showed no mental conditions existed sufficient to warrant discharge through medical channels.

15.  On 23 March 1970, the applicant's battalion recommended approval of the applicant's discharge with the issuance of a UD Certificate.  He stated the applicant was pending trial by a special court-martial, but charges would be dropped upon approval of discharge.

16.  On 30 March 1970, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  He also acknowledged he could receive a UD and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf. 

17.  In April 1970, the separation authority approved his discharge.

18.  He was discharged in pay grade E-1 on 14 April 1970.  He was credited with completing 1 year, 4 months, and 23 days of net active service during the period under review with 315 days of time lost.
19.  He provide a copy of a Certificate of Military Service, dated 2 April 1971, he was issued for his honorable period of service from 13 December 1966 through 17 January 1968.

20.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

21.  Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation stated an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, a UD was normally considered appropriate.

22.  Army Regulation 635-200 (Enlisted Personnel Separations) states in:

   a.  Paragraph 3-7a - an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member’s service generally meets the standards of acceptance conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate.

   b.  Paragraph 3-7b - a general discharge is a separation from the Army under honorable condition.  When authorized, it is issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant underwent a psychiatric evaluation on 13 February 1970 and was diagnosed with a drug addiction, chronic, severe.  The Commander, Special Processing Detachment, after interviewing the applicant and reviewing his records recommended the applicant be discharged for unfitness based on 315 days of lost time.  After consulting with counsel, the applicant acknowledged the proposed separation and issuance of a UD.  The separation authority approved his discharge and he was discharged accordingly on 14 April 1970.

2.  He did not provide sufficient evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his UD.  The evidence shows his misconduct during his period of service from January 1968 to April 1970 

diminished the quality of his service below that meriting a general or fully honorable discharge.

3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to the requested relief.

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)                                         AR20140006831





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ABCMR Record of Proceedings (cont)                                         AR20140006831



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