IN THE CASE OF:	  

		BOARD DATE:	  6 October 2015

		DOCKET NUMBER:  AR20150002347 


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, in effect, that his undesirable discharge be upgraded.

2.  The applicant states that he was not afforded the proper counseling and leadership to assist him in his transition from civilian to military life.  This should be obvious because he served in the U.S. Army for only 8 months and 10 days.

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.  A DD Form 373 (Consent, Declaration of Parent or Legal Guardian), dated 
26 January 1960, shows the applicant's mother consented to his enlistment in the U.S. Army.  At the time, the applicant was 17 years of age.

3.  The applicant was granted a moral waiver (i.e., for incorrigibility; fighting with stepfather), which allowed him to enlist in the Regular Army.  He enlisted on 
29 February 1960 for a period of 3 years.  

4.  A DA Form 26 (Record of Court-Martial Conviction) shows the applicant was convicted by –

* special court-martial, on 28 April 1960, of being absent without leave (AWOL) from 27 March 1960 to 8 April 1960
* special court-martial, on 15 September 1960, of being AWOL from 
14 August 1960 to 20 August 1960
* summary court-martial, on 7 February 1961, of failing to obey a lawful order issued by a superior noncommissioned officer

5.  On 9 February 1961, the applicant's company commander requested that the applicant undergo a psychiatric examination due to pending board action under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness).

6.  The applicant was evaluated at the Mental Hygiene Consultation Service, Ireland Army Hospital, Fort Knox, KY.  A psychiatrist examined the applicant and reviewed information in his medical records.

   a.  He found the applicant had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He also found that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in separation board proceedings.  

   b.  He diagnosed the applicant with passive-aggressive reaction that existed prior to service.  He noted the applicant had considerable difficulty with authority prior to service and that he escaped his civilian trouble by entering military service, but his disciplinary problems continued.  He added the applicant had lost what motivation he had and was no longer interested in soldiering.

   c.  The doctor recommended the applicant for administrative separation.


7.  A statement by First Sergeant C___ E. T___, First Sergeant, Company D,
5th Battalion, 2nd Training Regiment, Armor, U.S. Army Training Center, Armor, Fort Knox, KY, dated 13 February 1961, shows that he had observed the applicant's performance of assigned duties since 18 January 1961.  He noted the applicant was a constant disciplinary problem since being assigned to the unit and that he constantly corrected him on his uniform and poor attitude.

8.  A statement by Sergeant First Class P___ S___, Company D, 5th Battalion, 2nd Training Regiment, Armor, U.S. Army Training Center, Armor, Fort Knox, KY, dated 16 February 1961, shows he was the applicant's platoon sergeant.  He noted the applicant's failure to follow orders or instructions, lack of attention to uniform maintenance and care, and repeated sleeping in class despite the platoon sergeant's efforts to correct his behavior.

9.  On 16 February 1961, the applicant's company commander recommended that the applicant appear before a board of officers to consider him for elimination from the service under the provisions of Army Regulation 635-208 prior to the expiration of his term of service for unfitness.

   a.  The company commander noted the applicant was a habitual AWOL offender and that he wanted to get out of the military service.  He noted the applicant had two convictions by special court-martial and one conviction by summary court-martial.  He added that the applicant also failed the course as a track vehicle mechanic.

   b.  The commander advised the applicant of the basis for the separation action recommended and that he was recommending issuance of an Undesirable Discharge Certificate.  He also advised him of his rights and the separation procedures involved.

   c.  The applicant acknowledged that he understood that if an undesirable discharge was issued it would be under conditions other than honorable; that as a result of such discharge he may be deprived of many or all rights as a veteran under both Federal and State laws; and that he may expect to encounter substantial prejudice in civilian life in the event of a less than honorable discharge.  He waived his right to a hearing by a board of officers and he elected not to submit statements in his own behalf.

10.  The chain of command recommended approval of the applicant's separation with an Undesirable Discharge Certificate. 


11.  On 3 March 1961, the Commanding General, U.S. Army Armor Center, Fort Knox, KY, accepted the applicant's waiver of a hearing before a board of officers, approved the applicant's discharge, and directed issuance of an Undesirable Discharge Certificate.

12.  The applicant's DD Form 214 shows he was discharged on 10 March 1961 under the provisions of Army Regulation 635-208 and his service was characterized as under other than honorable conditions.  He had completed 
8 months and 10 days of net active service this period.  Item 32 (Remarks) shows he had a total of 122 days of lost time.

13.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-208, in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel having undesirable habits and traits of character.  An individual was subject to separation under the provisions of this regulation when it was determined that an individual's military record was characterized by frequent incidents of a discreditable nature with civil or military authorities or an established pattern of shirking.  This Army regulation also provides that Soldiers may be issued an Honorable or General Discharge Certificate by the separation authority; however, a Soldier discharged for unfitness was normally furnished an Undesirable Discharge Certificate.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel:

	a.  Chapter 3, 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.  Chapter 3, paragraph 3-7b, provides that an under honorable conditions discharge 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 his undesirable discharge should be upgraded because he was not afforded the proper counseling and leadership to assist him in his transition from civilian to military life.

2.  The evidence of record shows that the applicant was convicted by a summary court-martial and two special courts-martial, and he had 122 days of time lost.  Moreover, he completed less than 9 months of his 3-year active duty obligation. The evidence of record also shows that the applicant's platoon sergeant and first sergeant provided him guidance and counseling with respect to his failure to follow orders/instructions, substandard duty performance, and poor attitude. The evidence of record refutes the applicant's contention that he was not provided assistance in transitioning from civilian to military life.

3.  The applicant's discharge for unfitness under the provisions of Army Regulation 635-208 based on frequent incidents of a discreditable nature with military authorities was administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, his separation and the characterization of his service were appropriate and equitable.

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)                                         AR20150002347



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ABCMR Record of Proceedings (cont)                                         AR20150002347



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