RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 September 2005
	DOCKET NUMBER:  AR20050001288 


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


Mr. Carl W. S. Chun

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Bernard P. Ingold

Member

Mr. Michael J. Flynn

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge (UD) be upgraded to a general discharge (GD) under honorable conditions. 

2.  The applicant states that his discharge was both unfair and improper due to his maturity level, nature of his duties, and mental disorder.  He was approximately 17½ years old when he entered active duty (AD) and had a very low maturity level which contributed to his inability to fully accept and comply with military discipline.  The applicant submits that he received excellent conduct and efficiency ratings while assigned to Fort Campbell, Kentucky.  He states that he served in Vietnam as a duty Soldier which meant he did not have a specialty.  He would be assigned various duties.  One of his assigned duties was to work in the morgue under graves registration which was extremely difficult for him.  He took dead bodies out of bags and placed them on tables and later placed them in caskets.  He was later charged with cleaning the area where the dead bodies had laid. 

3.  He states that his Standard Form 88 (Report of Medical Examination), dated 25 January 1971, shows an abnormal psychiatric condition:  Inadequate personality, chronic, moderate.  He further states that he knew certain things upset him and that he never truly adjusted to military life and that it was not until the psychiatrist fully explained things to him that he realized that he probably should not have been in the Army.  He assumed that he was receiving a medical discharge, under honorable conditions, which was not the case.   

4.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge), a copy of his DA Form 20 (Enlisted Qualification Record), and a copy of his Report of Medical Examination, in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 13 March 1971, the date of his discharge.  The application submitted in this case is dated 5 January 2005.

2.  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 allows the Army Board for Correction of Military 

Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show he was inducted on 9 September 1969, as a duty Soldier (57A), at the age of 17 years and 4 months.  He was promoted to pay grade E-3 on 8 October 1970.  He served in Vietnam from 7 October 1970 to 12 March 1971.

4.  Between 4 February 1979 and 4 January 1971, he received non-judicial Punishment (NJP) on five occasions under Article 15, Uniform Code of Military Justice (UCMJ), for failure to go to his appointed place of duty on four   occasions, absent without leave (AWOL), for being absent from his appointed place of duty, violation of a lawful general regulation, and misappropriation of Government property.  His punishments consisted of a reduction to pay grade   E-1, forfeitures of pay, and restrictions and extra duties. 

5.  The applicant's allegation that he was assigned to work in the morgue is not supported by the evidence in his service record.  While in Vietnam, the applicant was assigned to the 506th Supply and Services Company and later to the 483rd Field Services Company as a Duty Soldier.  The applicant received non-judicial punishment on 23 November 1970 because he was absent from his appointed place of duty, the Clothing Equipment Exchange Facility on 19 November 1970. The applicant also received non-judicial punishment on 13 January 1971 for being absent from his prescribed place of duty, work at Class II and Class VII Retrograde Yard.  Class II included clothing and individual equipment, field and garrison furnishing and equipment, and expendable/durable items.  Class VII was work related to the handling and storage of major end items. 

6.  On 7 January 1971, the applicant's commander initiated action to separate the applicant from the service under the provisions of Army Regulation 
635-212, for unfitness.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf. 

7.  The applicant's records contain a copy of a request for psychiatric evaluation prepared by the commander.  He stated that the applicant was referred in connection with administrative separation under the provisions of Army Regulation 635-212.  He indicated that the applicant had received three Article 15s in the past 4 months and that his conduct and efficiency ratings were unsatisfactory.  He also indicated that he was being considered for separation based on his demonstrated behavior and poor attitude and that there was little or no rehabilitation potential. 

8.  The applicant underwent a psychiatric evaluation on 13 January 1971, which diagnosed him as having an inadequate personality, chronic, moderate, manifested by low frustration tolerance, resentment of authority, moderate stress, routine military duty, no predisposition, moderate impairment. 

9.  His mental status revealed a fully oriented individual, alert, cooperative individual with normal motor behavior.  His speech was coherent, his mood was neutral, and his affect was appropriate.  There was no evidence of a thought disorder.  Memory was intact, his judgment was adequate, and his insight was minimal.  Intelligence was considered to be within normal limits.  There was no evidence of drug or alcohol abuse and there was no evidence of psychosis or neurosis.  It was recommended that the applicant be administratively separated under the provisions of Army Regulation 635-212.

10.  In the evaluation prepared by the examining physician, the applicant was found mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  The applicant was found to meet psychiatric retention standards and the psychiatrist opined that there were no mental defects present sufficient to warrant disposition through mental channels.

11.  The applicant underwent a separation medical examination on 25 January 1971, and was found qualified for separation with an 111111 physical profile.
He was diagnosed as having an inadequate personality, chronic, moderate.

12.  Item 38 (Record of Assignments) of his DA Form 20, shows that he received excellent conduct and efficiency ratings while assigned to Fort Campbell during the period 22 September 1969 to 14 June 1970.

13.  Item 44 (Time Lost), of his DA Form 20, shows that he was AWOL from 21 to 26 April 1970 (6 days) and from 15 to 18 June 1979 (4 days).  

14.  All the documents containing the facts and circumstances pertaining to the applicant's discharge are not present in the available records.  However, his DD Form 214 shows that on 13 March 1971, he was discharged under the provisions of Army Regulation 635-212, for unfitness.  He was furnished a UD in the pay grade of E-1.   He had a total of 1 year, 5 months, and 25 days of creditable service and had 10 days of lost time due to AWOL.

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

16.  AR 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) 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.

17.  Army Regulation 635-200, paragraph 3-7, 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 the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  Since all documents pertaining to the applicant's discharge are not on file in his service record, in the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.

2.  The type of separation directed and the reasons for that separation appear to have been appropriate considering all the available facts of the case.

3.  The applicant alleges that his discharge was both unfair and improper due to his maturity level, nature of his duties, and mental disorder.  He also alleges that he performed various duties, including the duties of a mortuary affairs specialist which were extremely difficult for him.  It is presumed that the duties related to those of a mortuary affairs specialist would not be normally assigned to a Duty Soldier, at the age of 17/18, while serving in Vietnam; however, there is no evidence in the applicant's records to support his contention that he was assigned those duties.  The evidence of record shows that he absented himself from his assigned place of duty – the Clothing Equipment Exchange Facility and from the Class II and VII Retrograde Yard.

4.  The applicant's contention that his youth and immaturity impacted his ability to serve successfully is without merit.  The applicant was 17 years and 4 months of age on the date of his induction.  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.

5.  The applicant was seen by a psychiatrist and diagnosed as having an inadequate personality, chronic, moderate.  The mental evaluation revealed a fully oriented, alert, cooperative individual with normal motor behavior with no evidence of drugs or alcohol abuse.  There was no evidence of psychosis, neurosis, or mental defects present to warrant disposition through medical channels.  He was found to be mentally responsible and capable of distinguishing right from wrong and adhering to the right.  He possessed sufficient mental capacity to act in his own behalf in administrative procedures deemed appropriate by his command.

6.  The applicant may have assumed that he was receiving a medical discharge under honorable conditions (GD) based on his psychiatric evaluation; however, there is no evidence in the applicant's records, and the applicant has provided none, to support this allegation.  The notification he was served on 7 January 1971 shows clearly that he was being recommended for separation under the provisions of Army Regulation 635-212. 

7.  There is no evidence in the applicant's records, and the applicant has provided none, to show that he applied for an upgrade of his discharge to the ADRB within its 15-year statute of limitations.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 March 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 12 March 1974.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JA_____  _BI___    _MF______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




__James E. Anderholm________
          CHAIRPERSON




INDEX

CASE ID
AR20050001288
SUFFIX

RECON

DATE BOARDED
20050922
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19710313
DISCHARGE AUTHORITY
AR 635-212
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.