IN THE CASE OF:    

		BOARD DATE:  12 February 2015	  

		DOCKET NUMBER:  AR20140010981 


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. 

2.  The applicant states his record is correct.  He was young and naive at the time.  He was 19 years of age and was duped into signing [the discharge action]. However, he has led an honest and good life since his discharge.  He is now an ordained bishop without a blemish.  A captain told him this was not a bad discharge.  He feels the captain lied to him. 

3.  The applicant provides his DD Form 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's military records show he was born in June 1942 and enlisted in the Regular Army at 17 years of age on 15 June 1959.  He held military occupational specialty 112.10 (Heavy Weapons Infantryman).  He served in Korea from on or about 7 November 1958 to on or about 11 March 1961. 

3.  On 24 October 1959, at 17 years and 4 months of age, at Fort Benning, GA, he was convicted by a summary court-martial of one specification of being absent without leave (AWOL) from 19 to 22 October 1959.  The court sentenced him to a reduction to E-1 and a forfeiture of pay.  The convening authority approved the sentence and ordered it executed.

4.  On 25 March 1960, at nearly 18 years of age, in Korea, he was convicted by a special court-martial of one specification of wrongfully appropriating a pair of combat boots from a Korean Soldier.  The court sentenced him to confinement at hard labor for 3 months and a forfeiture of pay.  The convening authority approved the sentence and ordered it executed. 

5.  On 27 September 1961, at 19 years of age, at Fort Devens, MA, he was he was convicted by a summary court-martial of one specification of going from his appointed place of duty without authority.  The court sentenced him to confinement at hard labor for 1 month, reduction to E-1, and a forfeiture of pay.  The convening authority approved the sentence and ordered it executed. 

6.  The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his DD Form 214 shows he was discharged on 22 November 1961 in accordance with Army Regulation   635-208 (Undesirable Habits or Traits of Character, Enlisted Men, Discharge), for unfitness, in pay grade E-1 with an under other than honorable conditions character of service.  This form also shows:

* He was issued a DD Form 258A (Undesirable Discharge Certificate)
* He completed 2 years, 2 months, and 1 day of creditable active service, of which 1 year, 4 months, and 5 days was foreign service 
* Item 38 (Remarks) of the DD Form 214 shows he had 99 days of time lost under Title 10, U.S. Code, section 972

7.  Item 11c (Reason and Authority) of the applicant's DD Form 214 contains the entry SPN (Separation Program Number) 28B.  Army Regulation 635-5 (Separation Documents), in effect at the time, showed that the SPN code 28B was authorized for separations under the provisions of Army Regulation 635-208 with the following associated narrative reason: "Unfitness - Frequent involvement in incidents of a discreditable nature with civil or military authorities."

8.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, 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 an honorable discharge.

10.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), currently in effect, states: 

	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’s record is void of the facts and circumstances concerning the events that led to his discharge from the Army.  However, his record contains a copy of his DD Form 214 which shows he was discharged on 22 November 1961 under the provisions of Army Regulation 635-208 by reason of unfitness with a character of service as under other than honorable conditions.

2.  In the absence of evidence to the contrary, it must be presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time and there is no indication of procedural errors that would tend to jeopardize his rights.  Additionally, it must also be presumed that the character of the discharge is commensurate with the applicant's overall record of military service.

3.  Based on the available records, which includes conviction by a court-martial on three separate occasions, his service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, there is insufficient evidence to upgrade his 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)                                         AR20140010981





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ABCMR Record of Proceedings (cont)                                         AR20140010981



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