BOARD DATE:	  8 October 2015

		DOCKET NUMBER:  AR20150002969 


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 the discharge of her deceased husband, a former service member (FSM), be upgraded from under other than honorable conditions to an honorable discharge. 

2.  The applicant states the change in the characterization of service is for the dignity of the FSM's family.  The FSM, a Vietnam veteran, was deeply affected emotionally and spiritually and came back with drug abuse which adversely affected his family relationships.  The upgrade is needed for her (the applicant) to apply for benefits. 

3.  The applicant provides her marriage license and the FSM's death certificate and 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 FSM's records show he enlisted in the Regular Army (RA) on 26 February 1960.  He was trained in and held military occupational specialty 911.10 (Medical Specialist).  He served in Korea from 9 September 1961 to 12 November 1962.

3.  He was honorably discharged on 8 February 1963 for the purpose of immediate reenlistment.  He was issued a DD Form 214 that captured his total active service of 2 years, 11 months, and 13 days.

4.  He reenlisted in the RA on 9 February 1963 and he again served in Korea from 23 April 1963 to 5 May 1964.  He was then reassigned to various units on Fort Knox, KY. 

5.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: 

* 15 June 1964, for failing to go at the time prescribed to his appointed place of duty
* 17 February 1965, for failing to repair for reveille formation

6.  On 15 March 1965, he was convicted by a summary court-martial of one specification of failing to go at the time prescribed to his appointed place of duty and one specification of willfully disobeying a lawful order.  The court sentenced him to a reduction to private/E-1, confinement at hard labor for 15 days, and a forfeiture of pay.  The convening authority approved his sentence on 16 March 1965. 

7.  His records show he accepted additional NJP under the provisions of Article 15 of the UCMJ on: 

* 12 April 1965, for absenting himself from his unit on 9 April 1965 
* 24 June 1965, for absenting himself from his unit from 19 to 20 June 1965; he was reduced to private two/E-2

8.  On 24 June 1965, the FSM underwent a psychiatric evaluation at the Mental Hygiene Clinic, Fort Knox.  The military physician diagnosed him with a passive-aggressive personality, chronic, moderate, not in line of duty, existed prior to service, manifested by obstructive behavior, projection of blame for his administrative difficulties on others, poor judgment, and inability to adjust.  The physician stated:
* the FSM had a record of military offenses that reflected his apparent inability to make a mature emotional adjustment to authority in general
* his failure, despite repeated counseling at the unit level, to exhibit some effort to alter his behavior, and the long duration of his character disorder indicated he was a poor prospect for further military service
* he was mentally responsible, able to distinguish right from wrong, and had the mental capacity to participate in board proceedings 
* he did not have a disqualifying mental defect that warranted disposition through medical channels 
* he was cleared from a psychiatric point of view for administrative or disciplinary actions and his separation was recommended 

9.  On 25 June 1965, the FSM's immediate commander notified the FSM of his intent to initiate separation action against him by reason of unfitness in accordance with Army Regulation 635-208 (Personnel Separations – Unfitness – Frequent Incidents of a Discreditable Nature with Civil or Military Authorities).  The immediate commander cited the FSM's habitual misconduct of NJP, court-martial, failure to respond to counseling, and resistance to rehabilitation.  The unit commander recommended issuing an Undesirable Discharge Certificate.

10.  On 25 June 1965, the FSM acknowledged he had been counseled and advised of the contemplated separation action and that he was afforded the opportunity to request counsel.  He also acknowledged he understood if an under other than honorable conditions discharge was issued to him, he would be deprived of many or all rights as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He declined to have his case be heard by a board of officers and appearance before such board.  He also declined to submit a statement in his own behalf.

11.  On 28 June 1965, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his continued misconduct.  The immediate commander stated the FSM's performance had fluctuated and at times he was undependable with borderline insubordination.  He harbored suspicions that he was being persecuted by his superiors, but an investigation concluded that, in most cases, he was negligent in meeting his responsibilities.  He had been counseled about his responsibilities as a Soldier but chose to disregard the counseling and any attempts at rehabilitation.  The commander concluded that no good purpose would be gained in allowing him to reenlist.

12.  The FSM was provided with a copy of this bar and acknowledged its contents. His chain of command opined that his conduct and efficiency ratings had been totally unsatisfactory and the bar was ultimately approved. 

13.  On 29 June and 2 July 1965, the FSM's intermediate and senior commanders recommended approval of the FSM's discharge with the issuance of an Undesirable Discharge Certificate.

14.  On 7 July 1965, the FSM again accepted NJP under the provisions of Article 15 of the UCMJ for failing to repair for reveille formation.

15.  On 12 July 1965, the separation authority approved the FSM's elimination from the service and ordered him reduced to the lowest enlisted grade, and discharged from the Army because of unfitness, with an Undesirable Discharge Certificate.  On 17 July 1965, the FSM was accordingly discharged. 

16.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-208 with a separation program number of 28B (Unfitness – Frequent Incidents of a Discreditable Nature with Civil or Military Authorities).  His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  He completed 2 years, 4 months, and 29 days of net active service this period with 14 days of lost time, during the period under review.

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

18.  Army Regulation 635-208, in effect at the time, 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.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy 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 FSM's records reveal an extensive history of misconduct which included five instances of NJP; one court-martial conviction; and multiple instances of failure to report, lost time, and a failure to respond to rehabilitation.  Accordingly, his chain of command initiated separation action against him for unfitness.  

2.  He was advised of his rights and elected to waive his right to have his case heard by a board of officers.  His discharge was processed in accordance with applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  Contrary to the applicant's contention that the FSM was deeply affected emotionally and spiritually and came back with drug abuse, the evidence of records shows his separation was based on his unfitness and resistance to adjust to military authorities.  He was provided with a psychiatric evaluation to determine the root cause of his misconduct.  This was determined to be his passive-aggressive personality, chronic, moderate, not in line of duty, that existed prior to service and was manifested by obstructive behavior, projection of blame for his administrative difficulties on others, poor judgment, and inability to adjust.

4.  Based on his misconduct and record of indiscipline, the FSM's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  

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)                                         AR20150002969



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ABCMR Record of Proceedings (cont)                                         AR20150002969



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