IN THE CASE OF:	  

		BOARD DATE:	  23 July 2015

		DOCKET NUMBER:  AR20140019661 


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 his undesirable discharge be upgraded to a general or an honorable discharge. 

2.  He states he entered the Army at the age of 16 by changing his birth date from 10 April 1947 to 25 January 1945.  When he turned age 17, the Army found out he was under age, but allowed him to stay in.  He adds that he had more than 2 years of honorable service at that time which was more than a draftee.  However, he was tricked by his superiors into signing a voluntary discharge.

3.  He provides copies of: 

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* State of Tennessee Certificate of Birth
* Certification of Name Change
* United States Passport

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 record shows he was born on 25 January 1945 and enlisted in the Regular Army on 27 August 1963 at the age of 18 years and 7 months.

3.  A Federal Bureau of Investigation record shows the applicant was arrested on 31 July 1963, prior to enlistment, for petty larceny and malicious mischief.  In the 4th Endorsement, concerning the case on "Suspected Fraudulent Entry," dated 
6 May 1964, an investigating officer stated the applicant admitted he withheld information on his arrest.  The applicant indicated he was age 17 at the time and a juvenile.  The applicant also indicated he had no desire to be discharged from the service. 

   a.  On 28 April 1964, the company commander recommended a waiver and that the applicant be allowed to remain in the U.S. Army.  He stated the applicant had been in his command for 2 months and had no disciplinary action.  The applicant was also performing his job in a satisfactory manner.
   
   b.  On 29 June 1964, the Assistant Adjutant General stated the investigation revealed no fraudulent entry.  The applicant was subsequently allowed to remain in the Army.
   
4.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on:

* 15 October 1963, for being absent from his unit without proper authority on 5 October 1963
* 17 February 1965, for willfully disobeying a lawful order from a noncommissioned officer (NCO) on 16 February 1965 and missing reveille on 17 February 1965

5.  On 9 March 1965, he was convicted by a special court-martial of willfully disobeying a lawful order from an NCO on 14 February 1965 and leaving his post before he was regularly relieved on 15 February 1965.  He was sentenced to confinement at hard labor for 4 months, and a forfeiture of $55.00 pay for 
4 months.  On 5 April 1965, the unexecuted portion of his sentence to confinement at hard labor for 4 months was suspended.  

6.  On 23 November 1965, he was convicted by a special court-martial of being disrespectful in language toward an NCO on 5 November 1965.  He was sentenced to reduction to the rank/pay grade of private (E-1), confinement at hard labor for 3 months, and a forfeiture of $83.00 pay for 3 months.

7.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  However, his record contains a Psychiatric Evaluation, dated 29 November 1965, which shows he was referred to the mental health clinic by his commander for possible elimination under the provisions of Army Regulation 635-208 (Personnel Separations-Discharge-Undesirable Habits and Traits of Character).  The commander noted the applicant would not do his share of work, did not care for his equipment or self, and he was not liked by the other members of the squad.  

   a.  The psychiatrist stated the applicant was alert, oriented and showed no evidence of organic brain disease or psychosis.  His mood and affect appeared to fluctuate appropriately.  His memory was intact and intellectual function were within normal ranges.  
   
   b.  The psychiatrist also stated the applicant was characterized by immature impulsive thinking.  This was evidenced by his constant absence without leave and complete disregard for military rules and regulations.  The applicant expressed a desire to be retained in the military; however, he did not appear willing to change his behavior pattern.  It was believed that it was unlikely that the applicant would ever become anything other than a substandard Soldier.

8.  On 13 January 1966, the applicant was discharged under the provisions of Army Regulation 635-208, with an undesirable discharge.  His DD Form 214 lists his date of birth as January 1945.  He had completed a total of 2 years, 
2 months, and 5 days of active service with 73 days of lost time. 

9.  The applicant's record is void of any evidence to show the Army was made aware of him being underage age at the time his enlistment.  

10.  On 17 December 1980, the applicant appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 9 September 1982, the ADRB denied the applicant's request for a discharge upgrade.  The ADRB determined that the applicant was properly discharged.

11.  The applicant provided his birth certificate showing he was born in April 1947, which indicates at the time he enlisted in the RA he was 16 years and 4 months of age.

12.  Army Regulation 635-208, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness, including undesirable habits and traits of character.  It provided that a board of officers would convene for the elimination of enlisted personnel having undesirable habits and traits of character.  A recommendation for discharge because of undesirability would be made in the case of an enlisted person who repeatedly committed petty offenses not warranting trial by court-martial.  When discharged because of undesirable habits or traits of character, an Undesirable Discharge Certificate was normally considered appropriate.

13.  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 evidence shows the applicant was believed to be age 18 at the time he enlisted in the Army.  However, his birth certificate shows his actual age was 
16 years and 4 months.  There is no evidence and the applicant did not provide any to show the Army was made aware he was underage at the time of enlistment.  

2.  The evidence further shows he received one Article 15 in 1963 and a second Article 15 and two courts-martial actions in 1965 at the age of 18.  The evidence also shows he was given the opportunity to be discharged from the Army based on fraudulent enlistment due to failure to disclose his criminal record, but he, with his commander's consent, elected to remain in the military.  Therefore, his contention, in effect, that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.



3.  Although specific facts and circumstances surrounding his discharge are not available for review, the presumption of regularity must be applied.  He must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  He has failed to submit evidence that would satisfy that requirement.

4.  The applicant's record of indiscipline, which includes  two Article 15s, two court-martial convictions, and 73 days of lost time due to being absent without leave and in confinement, does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis upon which to grant the requested relief.

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)                                         AR20140019661



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ABCMR Record of Proceedings (cont)                                         AR20140019661



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