BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140010398 


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 discharge under other than honorable conditions.

2.  The applicant states, in effect:

* he was based at Fort Devens, MA in the 1960's, he does not recall the exact dates
* he had a three-day pass to visit his family in Salisbury, MD, with the requirement to return by Monday morning
* on Saturday he argued with his wife, the police were called, and he was arrested
* the judge did not release him until Monday morning; by that time he was reported absent without leave (AWOL)
* he was escorted to Fort Meade, MD by the military police
* he was subsequently discharged from Fort Meade
* he requests favorable consideration so he can apply for health benefits

3.  The applicant provides no additional evidence.

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 was inducted into the Army of the United States on 12 December 1961.  Following initial training, he was awarded military occupational specialty 111.00 (Light Weapons Infantryman).  On 26 June 1962, he was honorably discharged for the purpose of immediately enlisting in the Regular Army.  For this period, he served for 5 months and 19 days.

3.  On 27 June 1962, he enlisted in the Regular Army.  The highest rank/grade held while on active duty was private first class/E-3.  He served in Germany from on or about 17 August 1962 to on or about 13 August 1964.

4.  During his active service he was awarded or authorized:

* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-1)
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)

5.  His records show he was convicted by a summary court-martial on three occasions:

* on 23 April 1962, for one specification of being AWOL for the period 11 March 1962 to 5 April 1962 
* on 21 March 1964, for unlawfully kicking a fellow Soldier in the face with his feet
* on 8 July 1964, for unlawfully striking a fellow Soldier over the head with a chair

6.  On 6 May 1964, he received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on one occasion for disobeying the lawful order of a military policeman.   

7.  On 31 August 1965, the applicant was convicted by a special court-martial for four specifications of AWOL for the following periods:

* 3 May 1965 to 18 June 1965
* 23 July 1965 to 26 July 1965
* 2 August 1965 to 3 August 1965
* 6 August 1965 to 10 August 1965

8.  On 14 September 1965, the applicant's commander initiated separation action under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge Unfitness) by reason of unfitness.  He cited the applicant's periods of AWOL and convictions by summary courts-martial.  He recommended discharge under other than honorable conditions.

9.  On 14 September 1965, on a 2AA Form 653 (Individual's Statement of Waiver), the applicant stated he had been counseled and had received notification he was being recommended for discharge.  He acknowledged he may be issued an Undesirable Discharge Certificate.  He waived his rights to a hearing before a board of officers and to provide written statements in his own behalf.  He stated he did not desire counsel.  He further stated he understood he could encounter considerable prejudice should he receive an undesirable discharge.

10.  On 24 September 1965, the separation authority approved the discharge action and directed the applicant receive an undesirable discharge.  On 11 October 1965, the applicant was discharged accordingly.

11.  His DD Form 214 shows he received an under other than honorable conditions discharge and was discharged under the provisions of Army Regulation 635-208.  It states he had 3 years, 0 months, and 16 days of total creditable active service with 258 days of lost time.

12.  On 8 December 1980, the applicant was notified his case had been considered by the Army Discharge Review Board and his application was denied.

13.  Army Regulation 635-208, in effect at the time, provided policy and guidance for the elimination of enlisted personnel determined to be unfit for further military service.  It states:

	a.  action will be taken under this regulation when:

* despite reasonable attempts to rehabilitate the Soldier, further effort is unlikely to succeed
* rehabilitation is impractical, as in cases of confirmed drug addiction
* disposition under other regulations is inappropriate

	b.  individuals will be discharged by reason of unfitness with an undesirable discharge unless the particular circumstances in a given case warrant a general or honorable discharge.  
	c.  the following circumstances meet the criteria for this regulation:

* frequent incidents of a discreditable nature with civil or military authorities
* sexual perversion
* drug addiction
* an established pattern of shirking
* an established pattern showing dishonorable failure to pay just debts

14.  Army Regulation 635-200 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, states 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's request that his discharge be upgraded was carefully considered, but there was insufficient evidence to support his request.

2.  He suggests his under other than honorable conditions discharge is solely based on one period of AWOL, occurring after being held for a domestic disturbance by a civilian judge.  His record confirms, however, his separation was based upon a pattern of misconduct over a period of years and includes 258 days of lost time.  His separation action was processed in accordance with the applicable regulation, and all requirements of law and regulation were met.  Additionally, his rights were fully protected throughout the process.

3.  Based upon his personal conduct, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His behavior rendered his service unsatisfactory.  Accordingly, there is no basis upon which to grant the applicant a general or an honorable 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)                                         AR20140010398





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ABCMR Record of Proceedings (cont)                                         AR20140010398



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