BOARD DATE:	  13 January 2015

		DOCKET NUMBER:  AR20140008155 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  He states he mistakenly signed discharge papers in 1964 which he thought were leave papers to attend his grandmother's funeral.  He didn't realize until 30 days later that he signed the discharge papers in error.  He believes he was misled in signing the discharge papers.  He was given an under other than honorable conditions discharge and had intended to return following the funeral.  

3.  He provides two DD Forms 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 13 July 1960.  He served in Korea from 7 February 1961 through 11 June 1962.  He was honorably discharged on 24 August 1962 for immediate reenlistment.  He reenlisted on 25 August 1962.  He served in Korea again from 28 September 1962 to 27 April 1964.  

3.  On 30 March 1963, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for malingering and delaying the departure of the tested platoon from the company area.  During this time he was given specific orders by a noncommissioned officer to repair which he did not obey except in a slow and lax manner.  

4.  On 14 November 1963, he underwent a psychiatric examination and was diagnosed as having an inadequate personality and this condition was not amendable to treatment in this setting.  The psychiatrist recommended the applicant be separated under the appropriate regulations and stated the applicant:

* was mentally capable of distinguishing right from wrong and of adhering to the right
* had the mental capacity to understand and participate in the board proceedings and to intelligently cooperate in his own defense
* did not have mental or physical defect warranting medical separation under Army Regulation 635-40 (a, b) (Physical Evaluation for Retention, Retirement, or Separation)
* denied any connection with narcotics on or about 1 June 1963

5.  On 29 November 1963, the unit commander recommended that proceedings be initiated under the provisions of Army Regulation 635-208 (Unfitness, Frequent Incidents of a Discreditable Nature) to discharge the applicant from the military service.  The unit commander stated:

* the applicant admitted he had been a user of narcotics since 1961
* the applicant was not willing to assume the responsibility of the individual Soldier
* the applicant's appearance was below that expected of a Soldier of his rank and experience and required constant supervision at all times

6.  On 2 December 1963, the applicant was convicted by a summary court-martial of being absent from his organization on 12 November 1963.  

7.  In a 23 January 1964 statement, he stated he was counseled and advised of the basis for the pending Army Regulation 635-208 separation action being recommended.  He stated he was afforded the opportunity to request counsel and he elected counsel, and requested that his case be heard by a board of officers.  He acknowledged that he understood that if he waived this hearing and if the convening authority directed discharge that he would not have another opportunity to appear before a board of officers before being discharged.

8.  On 6 February 1964, he was notified that a board of officers would meet to determine whether or not he should be discharged under the provisions of Army Regulation 635-208, paragraph 3(c), Section II and he was appointed counsel to represent him.  

9.  On 3 March 1964, a board of officers recommended the applicant be discharged from the service under the provisions of Army Regulation 635-208 because of unfitness with an undesirable discharge.

10.  On 23 March 1964, the separation authority approved the findings and recommendations of the board of officers, directed the applicant be issued an Undesirable Discharge Certificate, and reduction to lowest enlisted grade.

11.  On 27 April 1964, he was discharged from active duty under the provisions of Army Regulation 635-208 for unfitness.  At the time of his discharge, he completed 1 year, 8 months, and 3 days of active military service during the period under review and 3 years, 9 months, and 15 days total active service.

12.  On 15 December 1964, the Army Discharge Review Board denied his request for an upgrade of his discharge.

13.  Army Regulation 635-208 set forth the basic authority for the separation of enlisted personnel who were found unfit or unsuitable for further military service. The regulation provided that members who displayed undesirable habits and traits were subject to separation for unfitness.  While the separation authority could grant a general, under honorable conditions discharge or honorable discharge, if warranted by the member's overall record of service, the issuance of an undesirable discharge was normally considered appropriate for members separated under these provisions.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a states 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.

15.  Army Regulation 635-200, 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 that he signed discharge papers instead of leave papers to attend his grandmother's funeral; however, his service record is void of evidence to support his claims.  The evidence of record shows he consulted legal counsel during the separation action, knew why he was being recommended for separation, and acknowledged the rights available to him.  

2.  The applicant's service record is void of evidence which confirms he was misled in signing the discharge papers.  

3.  The applicant's discharge processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant's service record shows he received one Article 15 and was convicted by a summary court-martial.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of general or honorable discharge and characterized his service as undesirable.

5.  The evidence of record does not indicate the actions taken in the applicant's case were in error or unjust.  Therefore, there is no basis for granting his request for an upgrade of his discharge from undesirable to an honorable or general under honorable conditions 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)                                         AR20140008155





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ABCMR Record of Proceedings (cont)                                         AR20140008155



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