BOARD DATE:	  28 April 2015

		DOCKET NUMBER:  AR20140015216 


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 at the time of his court-martial, he volunteered to serve in Southeast Asia to avoid his discharge but his request was denied.  He had spent the last year of his service training military personnel from Asia in different combat situations.  The only reason for this request is to show his remorse for what happened and to be allowed burial at a military cemetery.  

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 enlisted in the Regular Army on 13 May 1959.  He was trained in and held military occupational specialty 768.20 (General Supply Specialist).  

3.  He served in Hawaii from on or about 6 November 1959 to on or about 20 September 1961.  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar. 

4.  On 21 July 1960, he was convicted by a summary court-martial of two specifications of breaking restriction.  The court sentenced him to hard labor without confinement for 30 days, a reduction to E-1, and a forfeiture of pay.  The convening authority approved the sentence and ordered it executed.

5.  On 24 September 1960, he was convicted by a special court-martial of two specifications of breaking restriction and two specifications of being absent without leave (AWOL) from 31 August to 1 September 1960 and 4 to 13 September 1960.  The court sentenced him to confinement for 3 months, reduction to E-1, and forfeiture of pay.  The convening authority approved the sentence on 24 September 1960 and ordered it executed. 

6.  On 18 November 1960, he was convicted by a special court-martial of one specification of wrongfully appropriating a 1951 Chevrolet, the property of another individual.  The court sentenced him to confinement at hard labor for 6 months and forfeiture of pay.  The convening authority approved the sentence on 19 November 1960 and ordered it executed. 

7.  On 22 March 1961, he was convicted by a special court-martial of one specification of being AWOL on 1 March 1961 and one specification of wrongfully and falsely altering an identification card with intent to deceive.  The court sentenced him to confinement at hard labor for 6 months and forfeiture of pay.  The convening authority approved the sentence on 23 March 1961 and ordered it executed. 

8.  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 21 September 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 1 year, 5 months, and 16 days of service, of which 11 months and 21 days was foreign service
* he had 323 days of time lost under Title 10, U.S. Code, section 972

9.  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."

10.  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.

11.  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.

12.  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 complete 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 21 September 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 four 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 upon which 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)                                         AR20140015216



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ABCMR Record of Proceedings (cont)                                         AR20140015216



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