IN THE CASE OF:	  

		BOARD DATE:	  8 September 2015

		DOCKET NUMBER:  AR20150001690 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.

2.  The applicant states that:

	a.  He was riding with a fellow Soldier when they got into an accident.  The other Soldier fled the scene and the applicant was picked up by the city police and put in jail.  He told the officer that he was in the service but they never contacted the applicant's command.

	b.  He was eventually picked up by the military police and taken back to Fort Knox, Kentucky.  He was charged with being absent without leave (AWOL).  He tried to plead his case but he was placed in the stockade.

	c.  He doesn't believe he was given due process.  He wasn't given the opportunity to defend himself or have a qualified representative defend against the charges.  He should have at least been given a general discharge under honorable conditions.  

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 2 January 1959.  He held military occupational specialty 111.10 (Light Weapons Infantryman).  He served in Germany from 16 July 1959 to 16 September 1960.  The highest rank he attained was specialist four/E-4.

3.  His record contains:

	a.  A Charge Sheet showing he was convicted by a summary court-martial on 
9 January 1961 of being AWOL from 30 December 1960 to 4 January 1961; and

	b.  Special Court-Martial Orders showing he was convicted by a special court-martial on 16 February 1961 of being AWOL from 1 February to 7 February 1961.

4.  A DA Form 1049 (Personnel Action), dated 2 May 1961, shows the applicant's commanding officer requested an evaluation of the applicant's mental and physical conditions because he was under consideration for elimination from the service for unfitness.

	a.  The evaluating officer, a Medical Corps neuropsychiatrist, found the applicant was mentally responsible and able to distinguish right from wrong and adhere to the right.  He recommended the applicant be considered for elimination from the service.  

	b.  The Diagnosis and Remarks section states, "There is no psychiatric diagnosis.  EM is poorly motivated toward the service.  He says that he feels drinking has caused much of his trouble along with problems from home.  He impresses the undersigned as being an irresponsible individual who will probably continue to be a disciplinary problem if he is retained."
5.  A DA Form 1049, dated 16 May 1961, shows the applicant was recommended for separation for unfitness under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).   The reasons for the action are shown as:

	a.  Since joining the organization on 3 November 1960, the applicant had been AWOL for 6 hours on 6 December 1960, and received nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ); 

	b.  On 30 December 1960 he was AWOL for 5 days and he was convicted by a summary court-martial; and

	c.  On 1 February 1960, he went AWOL for 8 days and was convicted by a special court-martial.

6.  On 8 May 1961, the applicant acknowledged he had been counseled and advised of the contemplated separation action and that he was afforded the opportunity to request counsel but elected to decline.  He also acknowledged he understood if an undesirable discharge was issued to him, he would be deprived of many or all rights as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.  He waived his rights, and declined to submit a statement in his own behalf

7.  The applicant's chain of command recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

8.  On 5 June 1961, the separation authority approved the applicant's separation for unfitness and directed the issuance of an Undesirable Discharge Certificate. However, he appears to have gone AWOL before he could be discharged.

9.  A DA Form 1049, dated 14 July 1961, shows the Commander, Special Processing Detachment, Fort Knox, Kentucky, requested an evaluation of the applicant's mental and physical conditions because he was under consideration for elimination from the service for unfitness.  The commander indicated the reason for elimination as the applicant's character disorders manifested in his illegal absence resulting in his being dropped from the rolls of his former unit as a deserter.  The applicant was confined in the stockade. 

	a.  The evaluating officer, a Medical Corps neuropsychiatrist, found the applicant was mentally responsible and able to distinguish right from wrong and adhere to the right.  He recommend the applicant be considered for elimination from the service.  
	b.  The Diagnosis and Remarks section states, "This EM was recommended for separation under AR 635-208 by the Psychiatrist on 2 May 1961.  As predicted he has continued to cause difficulty.  Subject has been AWOL three times.  His chances of performing adequately in the future are limited."  

10.  A Charge Sheet, dated 21 July 1961, shows the applicant was convicted by a summary court-martial on 25 July 1961 for being AWOL from 29 May to 2 July 1961.

11.  The applicant's discharge processing documentation is not available for review.  His DD Form 214 shows he was separated on 10 August 1961 with a UOTHC discharge under the provisions of Army Regulation 635-208.  He had completed a total of 2 years, 1 months, and 8 days of active duty service with 184 days of lost time. 

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge.

13.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 provided that individuals would be discharged by reason of unfitness when their records were characterized by one of several behaviors including frequent incidents of a discreditable nature with civil or military authorities.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b states 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.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards.  He had at least two courts-martial and one NJP.  

2.  The specific facts and circumstances surrounding his discharge are not available for review.  However, his DD Form 214 shows he was administratively discharged under the provisions of Army Regulation 635-208.

3.  The applicant did not provide any evidence to support his assertions.

4.  In the absence of evidence to the contrary, the discharge process must be presumed to have been in accordance with applicable law and regulations.

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)                                         AR20110020137



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ABCMR Record of Proceedings (cont)                                         AR20150001690



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