MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 02 MAY 2002
         DOCKET NUMBER: AR2002066548


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Walter T. Morrison		Member
Mr. Christopher J. Prosser		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

---

APPLICANT REQUESTS: That his undesirable discharge be upgraded to honorable. The applicant states that he was told by the VA that his discharge should be upgraded.

PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:

The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973. Information herein was obtained from reconstructed personnel records.

The applicant enlisted in the Army on 28 October 1954. The applicant was seen by a doctor from the Psychiatry and Neurology Service at the Army hospital at Fort Dix, New Jersey, on 19 April and 5 May 1955 for evaluation because of his headaches. The report by the examining doctor indicates that the applicant had constant headaches for 2 1/2 months, and that he stated that he had a bad heart condition, was very irritable, and that his memory was poor. He indicated that he had a cranial trauma while AWOL. The report indicates that the applicant refused to train because of his headaches, and that he was very hostile and demanding. The doctor stated that he strongly doubted the applicant’s story, and that he should be given a psychiatric work-up.

A 6 May 1955 report of neuropsychiatric examination shows that the applicant had received two courts-martial for two periods of AWOL and was serving a six- month sentence for his last offense. The report indicates that the applicant resisted work rules and regulations and resented his Army superiors. He resisted work and discipline in a passive-aggressive way and appeared irresponsible and lazy. His self-image was extremely low, and he felt he could not do anything. His motivation for further service was extremely low and there was little likelihood that he would soldier consistently. There was no evidence of psychiatric disease or illness; however, the soldier was basically passive-aggressive and inadequate. His behavior was antisocial, warranting immediate release from confinement, and expeditious discharge. He was not insane, possessed sufficient mental capacity to know the difference between right and wrong, should be able to adhere to the right, and was mentally responsible. He had no mental or physical disease which warranted disposition through medical channels. He was diagnosed as having an antisocial personality, chronic, severe. The examining psychiatrist stated that the applicant was of no use to the service and attempts at rehabilitation would be of no avail. He recommended that the applicant be placed before a board of officers under the provisions of Army Regulation 615-368 and be separated from the service.

On 17 May 1955 the applicant’s commanding officer requested that a board of officers be convened under the provisions of Army Regulation 615-368 to determine whether or not the applicant should be discharged from the Army. That request indicated that the applicant had received one special and one summary court-martial and that he was presently assigned to the stockade. The request was based on the neuropsychiatric report and the applicant’s misconduct.

On 24 May 1955 a board of officers met and heard testimony from the applicant’s commanding officer, who indicated that the applicant had been court-martialed on two occasions for AWOL, and who recommended that the applicant not be retained in the service. The board report indicates that the applicant did not desire to question the witness and that the applicant elected to remain silent. The board stated that the applicant was considered unfit for further military service because of undesirable traits of character as indicated in the report of the psychiatrist. The board recommended that the applicant be discharged because of unfitness and that he be furnished an Undesirable Discharge Certificate. The separation authority approved the recommendation on 4 June 1955.

A 9 June 1955 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1. That report indicated that the applicant had an antisocial personality, chronic, severe.

The applicant was discharged on 10 June 1955. He had 4 months of service and 103 days of lost time.

Army Regulation 615-368, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness. Unfitness included, in
addition to misconduct and repeated petty offenses, habits and traits of character manifested by antisocial or amoral trends, chronic alcoholism, criminalism, drug
addiction, pathological lying, homosexuality, sexual perversion, habitual shirking, and repeated venereal infections. Action to separate an individual was to be
taken when, in the judgment of the commander, rehabilitation was unsuccessful, impractical or was unlikely to produce a satisfactory soldier. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

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

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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

There is no evidence, nor has the applicant provided any, to indicate that his undesirable discharge was in error, unfair, or unjust, and as such there is no basis to correct his record to show that he received an honorable discharge.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 10 June 1955, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 10 June 1958.

The application is dated 24 November 2001 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law. Prior to reaching this determination the Board looked at the applicant’s entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__FNE __ __WTM__ __CJP __ CONCUR WITH DETERMINATION

Carl W. S. Chun
Director, Army Board for Correction
         of Military Records

---

INDEX

CASE ID	AR2002066548
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020502
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	142.00
2.	110.00
3.	360
4.
5.
6.