IN THE CASE OF:	  

		BOARD DATE:	3 March 2015

		DOCKET NUMBER:  AR20140009118


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 honorable conditions (general) discharge, due to his continued service to his country through his community.

2.  The applicant states he has spent 46 years as a law enforcement officer and he has received his Master's degree.  He served his country and he is proud of his military service.  The beliefs in the core values of the United States are inherent in his heart and soul and his love for country, community, and citizenry is as true as any belief he holds.  

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 31 May 1964, a copy of his master's degree diploma from Michigan State University, and a signed document titled "Curriculum Vitae/Community Service of [Applicant]."

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 23 May 1961.  He entered active duty and completed basic training at Fort Knox, Kentucky.  He completed advanced individual training (AIT) at Fort Gordon, Georgia.  Upon completion of AIT, he was awarded military occupational specialty 053.10 (Radio Teletype Operator).  

3.  Upon the completion of his initial entry training, he was assigned to the 703rd Ordnance Battalion (later redesignated the 703rd Maintenance Battalion) in the Federal Republic of Germany.

4.  His records show he received nonjudicial punishment (NJP) on the following occasions:

* on 3 March 1962, for violating the curfew regulation on 2 March 1962
* on 18 May 1962, for being absent without leave (AWOL) on 18 May 1962
* on 13 February 1963, for failing to repair on 13 February 1963

5.  On 17 April 1962, before a special court-martial at Kitzingen, Federal Republic of Germany, he was convicted of a violation of Article 128 of the Uniform Code of Military Justice (UCMJ).  Specifically, he was charged with and convicted of a single specification of assaulting a noncommissioned officer (NCO) on or about   18 March 1962.

6.  On 20 June 1962, before a special court-martial at Kitzingen, Federal Republic of Germany, he was convicted of a violation of Article 91 of the UCMJ.  Specifically, he was charged with and convicted of a single specification of disrespecting an NCO on or about 24 May 1962.

7.  On 24 September 1962, the applicant's immediate commander initiated his bar to reenlistment, citing as his reason the applicant's history of NJP and convictions by court-martial.  Additionally, he noted the applicant was prone to constant attempts at intimidating his leadership with threats of bodily harm, his poor Soldierly bearing, and his need for constant supervision to accomplish the simplest tasks.  On 19 December 1962, his bar to reenlistment was approved.

8.  On 10 January 1964, before a special court-martial at Kitzingen, Federal Republic of Germany, he was convicted of a violation of Article 116 of the UCMJ.  Specifically, he was charged with and convicted of a single specification of causing a breach of peace on or about 28 December 1963.
9.  On 22 January 1964, he underwent a psychiatric evaluation; however, a medical official determined he did not suffer from any psychiatric disease.  

10.  On 28 January 1964, the applicant’s immediate commander notified him that he was being recommended for appearance before a board of officers to determine whether he should be eliminated from the service under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).  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.  

11.  On 28 January 1964, the applicant acknowledged receipt of the notification letter.  He acknowledged he had been counseled and advised of the contemplated separation action.  He elected to be represented by counsel and to have his case heard before a board of officers.  He indicated he intended to submit statements in his own behalf at a later date; however, no statements were available for review.

12.  On 29 January 1964, the applicant's immediate commander recommended the applicant's discharge from military service under the provisions of Army Regulation 635-208, citing his unsatisfactory conduct and efficiency, record of NJP, and court-martial convictions.  

13.  On 10 March 1964, he appeared before a board of officers tasked with considering his elimination from military service under the provisions of Army Regulation 635-208.  After careful consideration of his case, the board recommended his separation under the provisions of Army Regulation 635-208 and that he be issued an Undesirable Discharge Certificate.

14.  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.  

15.  On 31 March 1964, he was discharged under the provisions of Army Regulation 635-208 and given an undesirable discharge.  The DD Form 214 he was issued for this period of service shows he completed 2 years, 5 months, and 23 days of total active service with 138 days of time lost.

16.  On 23 September 1975, the applicant personally appeared, with counsel, before the Army Discharge Review Board (ADRB) to petition that board for an upgrade of his undesirable discharge.  After careful consideration of the testimony that day, the ADRB found he was properly discharged.  Nevertheless, the board elected to upgrade his discharge to an under honorable conditions (general) discharge.  

17.  His previous DD Form 214 was voided and a new DD Form 214 was created.  His original DD form 214 represented his service between 23 May 1961 and 31 March 1964; however, his recreated DD Form 214 represents his service between 23 May 1961 and 31 May 1964.

18.  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.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures for the separation of enlisted personnel.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record reveals a disciplinary history that includes numerous instances of NJP and at least three 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.  

2.  There is no evidence in the available record, and the applicant failed to provide any substantiating evidence that shows his extensive misconduct was a result of any reasons aside from the choices he made.  His discharge accurately reflects his overall record of service, which was clearly diminished by his misconduct.  

3.  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 record of service did not support the issuance of an honorable discharge by the separation authority at the time or during the ADRB review in 1975 and it does not support an upgrade of his discharge now.  

4.  His argument and his positive post-service conduct were noted; however, he has failed to show that his discharge processing and/or the characterization of service he received were in error or unjust.  As a result, there is no basis for granting his 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)                                         AR20120017233



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ABCMR Record of Proceedings (cont)                                         AR20140009118



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