BOARD DATE:	 2 April 2015

		DOCKET NUMBER:  AR20140013850


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 other than honorable conditions discharge.  

2.  The applicant states that he was a very young, naive man away from home for the first time and assigned to Germany.  He started hanging around the wrong crowd of Soldiers and went on vacation with them drinking and chasing girls.  He is now an older man and would appreciate leniency.  

3.  The applicant provides a copy of 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 enlisted in the Regular Army on 27 February 1962 and held military occupational specialty 111.00 (Light Weapons Infantryman).  At the time of his enlistment, he was 17 years old and his parents signed a DD Form 373 (Consent, Declaration of Parent or Legal Guardian) so he could enlist.  After he completed his initial entry training, he was assigned to Company D, 2nd Battle Group, 38th Infantry Regiment in Germany.    

3.  While a member of Company D, 2nd Battle Group, 38th Infantry Regiment, on 14 January 1963, he received nonjudicial punishment (NJP) for being absent without leave (AWOL) on 13 January 1963 from on or about 1200 to 1800 hours.    

4.  On 1 February 1963, he was convicted by a special court-martial of:

* one specification of failing to go to his place of duty:  extra duty detail, on 16 January 1963
* one specification of failing to go to his place of duty:  reveille, on 21 January 1963 
* one specification of failing to go to his place of duty: company training, on 21 January 1963
* one specification of being AWOL on 23 January 1963 from on or about 0700 to 1300 hours

5.  On 24 January 1963, his company commander recommended that he be barred from reenlistment for substandard performance and stated that numerous counseling efforts had failed to improve his performance.  This action was approved on 28 January 1963 by his higher commander. 

6.  On or about 6 February 1963, he was transferred to Company C, 2nd Battle Group, 38th Infantry Regiment for rehabilitation purposes. 

7.  General Orders Number 67, issued by Headquarters, U.S. Army Europe, dated 27 March 1963, shows 2nd Battle Group, 38th Infantry Regiment was redesignated 2nd Battalion, 30th Infantry Regiment.  

8.  On 16 April 1963, he was convicted by a special court-martial of;

* one specification of being AWOL from on or about 22 to 27 March 1963
* one specification of breaking restriction on or about 29 March 1963

9.  An AE Form 3133 (Unit Commander's Report for Psychiatric Examination), dated 28 March 1963, was initiated by his commander for the purpose of an evaluation under Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) for consideration for separation from the service.

10.  On 2 April 1963, he underwent a psychiatric evaluation.  The examining psychiatrist diagnosed him with passive-aggressive reaction with a characterization of being ambivalent toward authority and expressing resultant hostility by passive aggressive action or inaction.  The examining psychiatrist determined:

	a.  The applicant was either overtly or marginally obstructionist, inefficient, procrastinating, surly, sloppy, and stubborn and he flouted social and military rules and conventions. 

	b.  Further rehabilitative efforts would probably not be effective and the applicant was found to be an immature Soldier that wanted out of the service.  

	c.  The applicant was used to acting out destructively when frustrated, which served a triple purpose of reducing anxiety, getting him a discharge, and getting back at authority figures.  His behavior was likely to continue.  The psychiatrist's recommendation was separation from the service under the provisions of Army Regulation 635-208.   

11.  On 17 April 1963, he was notified by his immediate commander that he was being recommended to appear before a board of officers to determine whether he should be eliminated from the service under the provision of Army Regulation 635-208.   

12.  On 17 April 1963, the applicant acknowledged notification of the basis for the contemplated separation action being initiated against him and of the procedures and rights available to him.  He further acknowledged he understood that if he was issued an undesirable discharge he could expect to encounter considerable prejudice in civilian life, he could be ineligible for many or all benefits as a veteran, and it could hinder him in obtaining civilian employment.  He waived consideration of his case before a board of officers, declined to seek counsel, and elected not to submit a statement on his own behalf.

13.  On 19 April 1963, his immediate commander recommended that the applicant be discharged under the provisions of Army Regulation 635-208 for frequent incidents of a discreditable nature with military authorities with an Undesirable Discharge Certificate.  

14.  On or about 19 April 1963, his senior commander recommended approval of the discharge action against him with the issuance of an Undesirable Discharge Certificate.  The commander also stated that he had been barred from reenlistment.  
15.  On 27 April 1963, the separation authority approved his separation action under the provisions of Army Regulation 635-208, directed immediate reduction to private/E-1, and directed the issuance of an Undesirable Discharge Certificate 
Accordingly, on 9 May 1963, he was discharged.  

16.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-208, SPN (Separation Program Number) 28B, by reason of unfitness, frequent  involvement in incidents of a discreditable nature with civil or military authorities, with an under other than honorable conditions characterization of service.  He completed 1 year, 1 month, and
13 days of total active service with 28 days of time lost.  

17.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

18.  Army Regulation 635-208, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when it was clearly established that despite attempts to develop him as a satisfactory Soldier, further effort was unlikely to succeed, rehabilitation was impracticable, and the individual was not amenable to rehabilitation.  This regulation prescribed that an individual discharged for unfitness would be furnished an undesirable discharge, except when an honorable or a general discharge was warranted by the particular circumstances.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the policies and procedures 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's request for an upgrade of his under other than honorable conditions discharge was carefully considered.  

2.  The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of Army personnel as evidenced by his record of indiscipline including NJP and two special court-martial convictions for various infractions.  Accordingly, his chain of command recommended his elimination from the Army.  

3.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.

4.  The applicant contends that his discharge should be upgraded because he was young and immature at the time.  However, albeit that his mental evaluation stated that he was an immature Soldier, he was also diagnosed with passive-aggressive reaction in which he acted back at authority figures and wanted out of the service.  Further, there was an attempt by his chain of command to rehabilitate him through counseling and a unit transfer in order for him to conform to military standards and service, to which he failed to respond.  Therefore, there is no substantive merit to this contention.  

5.  There is no evidence in the available record, and the applicant failed to provide any substantiating evidence, which shows his extensive misconduct was a result of any reasons except the choices he made.  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 misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either 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)                                         AR20120005032



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140013850



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1