IN THE CASE OF:  	  

		BOARD DATE:  6 March 2015	  

		DOCKET NUMBER:  AR20140011344 


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 the discharge of her deceased husband, a former service member (FSM), be upgraded from under other than honorable conditions to a general discharge. 

2.  The applicant station states: 

* she feels the FSM's discharge was unjust because the person responsible for this did not like her husband 
* others who also served with her husband were targeted because of racial issues at the time
* she is trying to file for burial reimbursement and a grave marker which the FSM deserves because of the time he served his country

3.  The applicant provides a death certificate and a 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 FSM's records show he was inducted into the Army of the United States on 2 April 1963.  He was trained in and held military occupational specialty 11B (Light Weapons Infantryman).  

3.  On 14 August 1963, while still in training at Fort Dix, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 10 August to 12 August 1963. 

4.  Following completion of training, he was assigned to the 1st Battalion, 327th Infantry Regiment, Fort Campbell, KY.  He was promoted to private first class (PFC)/-3 on 6 December 1963. 

5.  His DA Form 24 (Service Record) shows he was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, 2nd Class Marksmanship Qualification Badge with Machine Gun Bar, Marksman Marksmanship Qualification Badge with Rifle Bar (M-1), and Parachutist Badge. 

6.  On 13 March 1964, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty. 

7.  On 29 April 1964, he was convicted by a summary court-martial of one specification of failing to go at the time prescribed to his appointed place of duty. The court sentenced him to a reduction to E-2, a forfeiture of pay, and extra duty. The convening authority approved the sentence on the same date. 

8.  On 7 May 1964, he accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order. 

9.  On 12 February 1965, consistent with his pleas, the FSM was convicted by a special court-martial of two specifications of being AWOL from 30 November 1964 to 6 January 1965 and 22 January to 25 January 1965.  The court sentenced him to confinement at had labor for 3 months and a forfeiture of $28.00 pay per month for 3 months.  The convening authority approved the sentence on 16 February 1965. 

10.  On 1 June 1965, he accepted NJP under the provisions of Article 15 of the UCMJ for absenting himself from his appointed place of duty. 
11.  On 1 July 1965, he was convicted by a special court-martial of two specifications of failing to go at the time prescribed to his appointed place of duty. The court sentenced him to confinement at hard labor for 2 months and a forfeiture of $55.00 pay per month for 2 months.  The convening authority approved the sentence on 7 July 1965. 

12.  On 8 March 1965, the FSM's immediate commander notified the FSM of his intent to initiate separation action against him in accordance with Army Regulation 635-208 (Personnel Separations – Unfitness – Frequent Incidents of a Discreditable Nature with Civil or Military Authorities).  The immediate commander cited the FSM's habitual misconduct of NJP, three courts-martial, extensive AWOL, and resistance to rehabilitation.  The unit commander recommended an Undesirable Discharge Certificate.

13.  On 10 March 1965, the FSM acknowledged he had been counseled and advised of the contemplated separation action and that he was afforded the opportunity to request counsel.  He also acknowledged he understood if an under other than honorable conditions discharge was issued to him, he would be deprived of many or all rights as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He requested his case be heard by a board of officers and appearance before such board.  He also declined to submit a statement on his own behalf.

14.  On 10 August 1965, a board of officers convened at Fort Dix, NJ, with the FSM and his counsel present.  The board concluded the FSM's frequent incidents of discreditable nature clearly established him as unfit for further military service and recommended his separation under the provisions of chapter 3 of Army Regulation 635-208 with an undesirable discharge. 

15.  The convening authority approved the board of officers' findings and recommendation and ordered the FSM discharged because of unfitness and be furnished an Undesirable Discharge Certificate.  On 17 September 1965, the FSM was accordingly discharged. 

16.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-208 with a separation program number of 28B (Unfitness – Frequent Incidents of a Discreditable Nature with Civil or Military Authorities).  His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  He completed 1 year, 10 months, and 7 days of active service and he had 221 days of lost time. 

17.  On 28 January 1982, the Army Discharge Review Board (ADRB) reviewed his discharge and found it to be proper and equitable.  Accordingly, the ADRB denied his petition for an upgrade of his discharge. 

18.  Army Regulation 635-208, in effect at the time, 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.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy 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 FSM's records reveal an extensive history of misconduct which included four instances of NJP, three instances of court-martial conviction, multiple instances of AWOL, two instances of confinement, and a failure to respond to rehabilitation.  Accordingly, his chain of command initiated separation action against him for unfitness.  

2.  He was advised of his rights and elected to appear before a board of officers. A board convened and concluded the FSM's frequent incidents of a discreditable nature clearly established him as unfit for further military service and recommended his separation with an undesirable discharge.  The convening authority approved it.

3.  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.  Further, his discharge accurately reflects his overall record of service.

4.  Based on his extensive history of misconduct and record of indiscipline, the FSM's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20140011344





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ABCMR Record of Proceedings (cont)                                         AR20140011344



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