IN THE CASE OF:	  

		BOARD DATE:	  20 November 2014

		DOCKET NUMBER:  AR20140007156 


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 the discharge he received in 1964, from a general discharge (GD) to an honorable discharge (HD).  He actually received an undesirable discharge (UD) in 1964.

2.  The applicant states he was a drunk and a dope addict at the time, and he didn't get help until he was in his mid-40s.  He is now 75 years of age and he is in bad health.  He doesn't want to die with this discharge on his record.  He doesn't want his children to have to deal with this.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 24 June 1959
* correspondence from the Army Review Boards Agency
* Department of Veterans Affairs (VA) Rating Decision with an associated checklist
* certificates 

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 served in the Regular Army (RA) from 11 September 1956 through his honorable release from active duty on 24 June 1959.  

3.  On 19 February 1963, he enlisted in the RA for a period of 3 years.  

4.  On 10 June 1963, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failing to go at the time prescribed to his appointed place of duty.  

5.  On 12 March 1964, Headquarters, U.S. Army Engineer Center Brigade, Fort Belvoir, VA, issued Special Court-Martial Order Number 63.  The order shows that, pursuant to his pleas, he was found guilty of:

* being absent without leave (AWOL) from 4 August to 6 December 1963 and from 3 to 7 January 1964
* escaping from lawful confinement on 3 January 1964

6.  On 5 May 1964, he underwent a psychiatric evaluation.  The examining psychiatrist found no disqualifying mental disease or defect sufficient to warrant discharge for medical reasons.  He opined that the applicant was not insane, possessed sufficient mental capacity to know the difference between right and wrong and to adhere to the right, was mentally responsible for his actions, and could participate in his defense.  He stated the applicant's and the Army's best interests would be served by considering him for administrative separation.

7.  On 15 May 1964, he acknowledged he had been notified by his commander of a recommendation to discharge him under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).  He also acknowledged that he had been advised of rights available to him because he could be issued a UD.  He waived his right to counsel, to request that his case be heard by a Board of Officers, and to submit statements in his own behalf.  

8.  His chain of command recommended approval of the recommendation to discharge him for unfitness and recommended issuance of a UD Certificate.  

9.  On 3 June 1964, the separation authority approved his discharge under the provisions of Army Regulation 635-208, directed assignment of separation program number (SPN) 28B (involved in frequent incidents of a discreditable nature with civil or military authorities), and directed issuance of a UD Certificate. 

10.  On 19 June 1964, he was discharged in accordance with the separation authority's decision.  His DD Form 214 shows:

* his service was characterized as under other than honorable conditions
* he was issued a UD Certificate
* he completed 5 months and 16 days of net service this period with 320 days lost 

11.  His Official Military Personnel File is void of documentation indicating he had been diagnosed with drug addiction or alcohol abuse.

12.  He provides:

* a VA Rating Decision that shows his claim for service-connected disability for prostate cancer was denied
* certificates issued to him during his first period of RA service
* a certificate showing he has met the requirements for membership in the American Legion

13.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness.  The regulation stated that individuals would be discharged by reason of unfitness with a UD (unless the particular circumstances in a given case warranted a GD or HD) when it had been determined that an individual's military record was characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts.  The regulation did not provide for considering prior periods of service in determining the type of discharge that would be issued.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority 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 states he is in bad health and he is now 75 years of age.  The ABCMR does not grant requests to upgrade discharges on the basis of the applicant's current health or on the basis of the passage of time.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  It appears the applicant believes his first period of honorable RA service should have been considered as a mitigating factor in the characterization of his service during his second period of RA service.  There was no authority for considering his prior service in determining the character of service he would receive for his second period of RA service.  

3.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

4.  During his second RA enlistment, he received nonjudicial punishment for failing to go at the time prescribed to his appointed place of duty.  He was also convicted by a special court-martial for being AWOL during two periods and escaping lawful confinement.  Due to this record of indiscipline, his service during his second RA enlistment was unsatisfactory.  There is no evidence of circumstances that would have warranted a GD or an HD.  In view of the foregoing, there is no basis upon which to grant 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)                                         AR20140007156





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ABCMR Record of Proceedings (cont)                                         AR20140007156



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