IN THE CASE OF:	  

		BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140012530 


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:

* he was very young
* he did not speak English and could not fully explain the reasons for his absences from duty
* he has been a law-abiding citizen and never had any problems with the law
* he honestly regrets his actions that involved misconduct and being absent without leave (AWOL)
* at the time of his summary court-martial he was not able to present a proper defense due to his language barrier

3.  The applicant provides:

* two character-reference letters
* 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 was born on 23 September 1943 in Puerto Rico.  He was inducted into the Army of the United States on 10 August 1961.  He completed his basic and advanced individual training and was awarded military occupational specialty 111.06 (light weapons infantryman).

3.  On 30 March 1962, he was convicted by a summary court-martial of being AWOL from 26 March 1962 to 28 March 1962.  He was sentenced to forfeiture of $50.00 pay and reduction to E-1.  On 30 March 1962, the convening authority approved the sentence.

4.  On 11 April 1962, he was convicted by a summary court-martial of being AWOL from 7 April 1962 to 9 April 1962.  He was sentenced to confinement at hard labor for 30 days and forfeiture of $50.00 pay.  On 11 April 1962, the convening authority approved the sentence.

5.  On 19 June 1962, he was convicted by a special court-martial of being AWOL from 5 May 1962 to 15 June 1962.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $55.00 pay per month for 6 months.  On 19 June 1962, the convening authority approved the sentence.

6.  In August 1962, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The unit commander stated the applicant was considered unfit for further military service due to his record of misconduct.

7.  On 10 August 1962 after consulting with counsel and being advised of his recommended separation for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel.  He acknowledged he understood he might be deprived of many or all rights as a veteran under both Federal and State laws and he might encounter substantial prejudice in civilian life if an undesirable discharge were issued.  He also elected not to submit a statement in his own behalf.

8.  On 7 September 1962, the separation authority approved the recommendation for separation under the provisions of Army Regulation 635-208 and directed the issuance of an Undesirable Discharge Certificate.

9.  On 27 September 1962, he was discharged for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He completed 8 months of total active service with 168 days of lost time.

10.  In September 1963, the Army Discharge Review Board denied his request for a discharge upgrade.

11.  He provided two character-reference letters.  A friend attests the applicant was respectful, nice, and gentle in school.  After the applicant was sent to basic training, his father became very ill with cancer.  Due to his father's illness and the fact that he was the only male in the family, he felt the need to go home to help his mother and sister.  Since he was very young, inexperienced, and did not speak English, he did not deal appropriately with his superiors in the Army and was discharged under other than honorable conditions.  After his father's death he continued studying and became a skilled craftsman and raised a family.  He has been a good citizen.

12.  A Veterans Service Officer attests the applicant is a very good and productive citizen.  He regrets his AWOL periods.  At that time he did not speak English and was unable to explain his problems during the summary court-martial.  Since his discharge he went to college and he has been a law-abiding citizen.

13.  Army Regulation 635-208, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness.  Individuals would be discharged by reason of unfitness with an undesirable discharge when it had been determined that an individual's military record was characterized by discredit, including frequent incidents of a discreditable nature with civil or military authorities.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority 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 applicant contends he was very young; however, age is not a sufficiently mitigating factor.  Although he was almost 18 years of age when he was inducted, he successfully completed initial entry training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military term of service.

2.  He contends he had deficiencies in speaking and understanding the English language.  However, since he successfully completed basic and advanced individual training and was awarded a military occupational specialty, it appears his English language skills were sufficiently proficient for satisfactory military service.

3.  He contends he has been a law-abiding citizen and never had any problems with the law.  However, good post-service conduct alone is not a basis for changing a service characterization.

4.  The character-reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

5.  His brief record of service included two summary court-martial convictions, one special court-martial conviction, and 168 days of time lost.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

6.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

7.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

8.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20140012530



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ABCMR Record of Proceedings (cont)                                         AR20140012530



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