IN THE CASE OF: BOARD DATE: 27 January 2009 DOCKET NUMBER: AR20080017937 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, an upgrade of the characterization of his discharge to honorable. 2. The applicant states, in effect, that he was treated for a head injury. This was the result of a beating by a group of Soldiers. He was seventeen years old and was immature. Two years earlier, his father had died. His father's death was a great blow to him. The applicant concludes by stating that he is all grown up now and he would appreciate a positive response to his request. 3. In support of his request, the applicant submitted a copy of page one of his DA Form 20 (Enlisted Qualification Record); a copy of his DD Form 4 (Enlistment Contract - Armed Forces of the United States); a copy of Standard Forms (SF) 88 (Report of Medical Examination) dated 17 January 1969 and 7 October 1969, respectively; and a copy of a SF 89 (Report of Medical History) dated 7 October 1969. 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 enlisted in the Regular Army for two years on 28 January 1969. The evidence shows that the applicant was 17 years, 1 month, and 10 days of age at the time of his enlistment. He successfully completed basic combat training at Fort Dix, New Jersey. He was assigned to undergo advanced individual training (AIT) for award of the military occupational specialty (MOS) 11B (Light Weapons Infantryman); however, the applicant departed from his unit in an absent without leave status before he could complete training and be awarded the MOS. 3. The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself without authority on 9 April and remaining so absent until 14 April 1969, on 17 April and remaining so absent until 24 April 1969, and on 1 May and remaining so absent until 5 May 1969. The imposed punishment was a forfeiture of $34.00 per month for two months. The applicant did not appeal the punishment. 4. The applicant's records document the highest rank and pay grade he held on active duty was Private, E-1, the pay grade and rank in which he enlisted. The record contains no documented acts of valor, achievement, or service warranting special recognition. 5. The applicant was psychiatrically examined on 4 September 1969. During examination he stated he did not like the Army and had no intention of fulfilling his military obligation. He reported his parents divorced when he was quite young and he described severe rejection by his mother. His father had died approximately two years before the psychiatric examination. Based on this examination, he was found to have a schizoid personality, chronic, moderate; manifested by seclusiveness, nomadism, and inadequate emotional expression. His impairment for further military service was moderate. The examining physician opined that the applicant was, at the time, so far free from mental defect, disease, or derangement as to be able, concerning the particular acts charged, both to distinguish right from wrong and adhere to the right. He was mentally responsible. He had the capacity to understand the nature of board and judicial proceedings and to cooperate in his own defense. In connection with standards prescribed in Army Regulation 40-501 (Medical Services - Standards of Medical Fitness), there were no mental or physical defects warranting admission to, or final disposition through medical channels. The applicant was psychiatrically cleared for any action deemed appropriate by command, including administrative discharge. 6. On 5 June 1969, the applicant received a special court-martial. He was found guilty of absenting himself without proper authority on multiple occasions: on 9 April and remaining so absent until 14 April 1969, on 17 April and remaining so absent until 24 April 1969, on 1 May 1969 and remaining so absent until 8 May 1969, and on 20 May and remaining so absent until 23 May 1969. The applicant was sentenced to restriction to the limits of his company for 60 days and to forfeit $50.00 per month for two months. The sentence was adjudged on 5 June 1969; however, only so much of the sentence as provided for a forfeiture of $50.00 per month for two months was approved and ordered duly executed. 7. On 16 July 1969, the applicant received a special court-martial. He was found guilty of absenting himself without proper authority on 9 June and remaining so absent until 25 June 1969. The applicant was sentenced to perform hard labor without confinement for two months and a forfeiture of $50.00 per month for two months. The sentence was adjudged on 9 July 1969. The sentence was approved and ordered duly executed on 16 July 1969; however, the execution of that portion of the sentence adjudging hard labor without confinement for two months was suspended for two months at which time unless the suspension was sooner vacated, the unexecuted portion of the sentence to hard labor without confinement would be remitted without further action. 8. On 15 August 1969, the applicant received a summary court-martial. He was found guilty of absenting himself without proper authority on 19 July and remaining so absent until 28 July 1969. The applicant was sentenced to a forfeiture of $20.00 per month for one month. The sentence was adjudged on 15 August 1969 and approved on 19 August 1969. 9. On 2 September 1969, the applicant's unit commander notified him he was being recommended for separation from the Army for unfitness under the provisions of Army Regulation 635-212, paragraph 6a. The applicant acknowledged the notification on the same date. 10. On 4 September 1969, the applicant submitted a 1AA Form (Individual's Statement - Separation Under AR 635-212) to his unit commander. The applicant acknowledged he had been advised by counsel of the basis for the contemplated action to accomplish his separation for unfitness under the provisions of Army Regulation 635-212. The applicant waived consideration of his case by a board of officers and a personal appearance before a board of officers. The applicant elected not to submit a statement and waived representation by appointed counsel. The applicant further stated he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him. He further understood that, as a result of the issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life. 11. On 8 October 1969, the applicant was recommended for separation under the provision of Army Regulation 635-212, paragraph 6a, by reason of unfitness. An undesirable discharge was recommended. The reason cited by the unit commander for the separation action was the applicant had gone absent without leave six times and was dropped from the rolls as a deserter two times. He had received two special courts-martial and one summary court-martial. As a result of his conviction by court martial, he was confined one time. He had accumulated 64 days of bad time and as a result of these disciplinary infractions he was considered unfit for military service. 12. On 7 October 1969, while undergoing his separation physical examination, the applicant reported to the examining physician he had been treated for a possible head fracture when he split his head open. The applicant alleges that he was treated for a head injury which resulted from a beating by a group of Soldiers; however, there is no evidence in his record to corroborate this. In Item 39 (Physician's Summary and Elaboration of All Pertinent Data), the physician entered, "Hx Head injury March 1965 with sequelae. See P & N Consult. Is not other sequelae to above Hx." A copy of the consults which were requested of the psychiatry and neurology clinics by the examining physician are not available for the Board's review. 13. A copy of a US Walson Army Hospital letter, Subject: Report of Medical Evaluation shows the applicant was medically qualified for separation from military service based on this physical examination. The letter was signed by a medical corps officer in the rank of captain. 14. On 9 October 1969, the Commander, Headquarters, Special Troops, US Army Training Center, Infantry, Fort Dix, New Jersey, recommended approval of the applicant's separation because he felt the applicant had no motivation for continued service and would not respond to counseling and rehabilitation. 15. On 17 October 1969, the approving authority approved the applicant's discharge from the service under the provisions of Army Regulation 635-212, paragraph 6a(1) for unfitness. He directed that the applicant be issued an undesirable discharge. 16. The applicant was discharged with an undesirable discharge, in the rank and pay grade of Private, E-1, on 24 October 1969, under the provisions of Army Regulation 635-212. A Separation Program Designator of 28B [Unfitness - involved in frequent incidents of discreditable nature with civil or military authorities] was applied to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 17. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. On 26 September 1972, the applicant was notified that after careful consideration of his military records and all other available evidence, the ADRB had determined he had been properly discharged; accordingly, his request for an upgrade of his discharge was denied. 18. Army Regulation 635-212 (Discharge - Unfitness and Unsuitability), then in effect, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate. 19. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 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. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. 20. Army Regulation 635-200, 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. DISCUSSION AND CONCLUSIONS: 1. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 2. The applicant's allegation that he was treated for head injury, and the death of his father, were considered; however, there is some evidence to indicate that the applicant's alleged head injury was sustained in March 1965, several years before his entry into military service. The medical corps officer who conducted the applicant's separation physical examination recommended he be seen by psychiatry and neurology. It appears that upon examination no significant medical finding was made to prompt the Army to refer him for further medical examination or for further medical treatment. A presumption must be made since the applicant was not referred for further medical examination and treatment he was found to be free of medical defects from the alleged beating he sustained. The evidence of record shows the applicant was medically cleared for separation on 7 October 1969. 3. The applicant's contention that his youth and immaturity impacted his ability to serve successfully is without merit. The applicant was 17 years, 1 month, and 10 days of age on the date of his enlistment in the Regular Army. There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service. 4. The evidence does show the applicant completed basic combat training; however, after being assigned to his advanced individual training, he developed a history of repeatedly absenting himself without leave. He received nonjudicial punishment and courts-martial for these absences. The applicant's chain of command decided the applicant had no motivation for continued service and he would not respond to counseling and rehabilitation and moved to discharge him. 5. The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and the type of discharge is an undesirable discharge. It is believed that the reason for discharge and the characterization of service were both proper and equitable. 6. The overall quality of the applicant’s service was considered; however, the record contains no documentary evidence of acts of valor or achievement which would warrant special recognition and an upgrade of his undesirable discharge. His service was determined not to be sufficiently meritorious to warrant an upgrade of his discharge. 7. In view of all the evidence in this case, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge to honorable. 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) AR20080017937 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080017937 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1