RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 22 February 2007 
	DOCKET NUMBER:  AR20060009498 


	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



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, in effect, an upgrade of his undesirable discharge. 

2.  The applicant states, in effect, he believes his military records should be checked again because they do not jibe with his memory.  He also states that he did not go to Germany and did not have a mental problem.  He was never treated for anything.  The only time he went absent without leave (AWOL) was to attend his grandmother’s funeral.  He did turn himself in and was taken to Fort Gordon, where he served time.  He never received a court-martial.  

3.  The applicant provides a copy of his grandmother’s obituary and a letter from his brother in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 19 July 1966, the date of his discharge from active duty.  The application submitted in this case is dated 30 June 2006.

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 enlisted in the Regular Army, as a private, pay grade E-1, on 17 November 1964, for 3 years.  

4.  He completed basic combat training and advanced individual training and was assigned military occupational specialty 16B, AD missile crewman.  He was advanced to pay grade E-3 on 1 September 1965.

5.  He was honorably discharged on 30 January 1966 for immediate reenlistment on 31 January 1966, for 4 years.

6.  On 6 January 1966, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful appropriation of two white shirts, property of another Soldier.  His punishment included reduction to pay grade E-2, forfeiture of $13.00, 14 days restriction, and 14 days extra duty.

7.  He was reduced to pay grade E-2.

8.  On 14 April 1966, he was punished under Article 15, of the UCMJ for being absent from his unit from 7 April 1966 to 14 April 1966.  His punishment included forfeiture of $10.00, 14 days restriction, and 14 days extra duty.

9.  On 25 May 1966, he was found guilty by special court-martial of one specification of AWOL from 19 April 1966 to 7 May 1966.  He was sentenced to confinement at hard labor for 6 months, forfeiture of $30.00 per month for one month, reduction to the lowest enlisted grade.  The sentence was approved on the same day.

10.  In a statement, dated 26 May 1966, the applicant’s commander stated that the applicant advised him that he could not adjust to military life and wanted to talk to the doctors at mental health because of his nervousness.  He did not send the applicant to mental hygiene for there appeared to be nothing wrong with the applicant at that time.  The applicant also complained of having financial difficulties.  He tried to help the applicant set up a budget; however, the applicant stated that it would not work.  The chaplain also spent many hours talking to the applicant, but was unable to please him.  The applicant stated that he wanted out of the Army anyway he could get out.  Since he could not receive a discharge under the provisions of Army Regulation 635-209, he wanted to mess up enough so that he could receive a discharge under the provisions of Army Regulation 635-208.  The commander recommended the applicant be discharged.

11.  On 27 May 1966, the applicant, through counsel, acknowledged the basis for action recommended under the provisions of Army Regulation 635-208 for unfitness.  The applicant waived his right to appear before a board of officers, elected not to submit a statement in his own behalf.  He acknowledged the type of discharge he may receive as a result of that action and he understood that he might be issued an undesirable discharge under conditions other than honorable, and the results of issuance of an undesirable discharge.

12.  On 2 June 1966, a psychiatric examination found the applicant to be aggressive, passive type, chronic, severe, and manifested by inability to adjust to military environment.  The applicant impulsively reenlisted with unrealistic expectations.  An administrative separation was recommended.

13.  On 5 July 1966, the appropriate separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-208 and directed the issuance of an undesirable discharge.

14.  He was discharged from active duty, in pay grade E-1, on 19 July 1966, under the provisions of Army Regulation 635-208, under other than honorable conditions.  He was credited with 2 months and 13 days net service this period.  He was also credited with 1 year, 2 months, and 14 days other service and 1 year, 4 months, and 27 days total active service.  He was credited with 97 days lost time due to AWOL and confinement.  He was issued an Undesirable Discharge Certificate.

15.  The applicant submits a copy of his grandmother’s obituary and a letter from his brother. The letter stated that the applicant went AWOL to attend his grandmother’s funeral.  The applicant turned himself in to the military police and was transferred to Fort Gordon.

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

17.  Army Regulation 635-208, then in effect, provided in pertinent part, the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals determined to possess undesirable habits and traits were discharged under this regulation.  An undesirable discharge was normally issued.

18.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.

19.  Army Regulation 635-200, paragraph 3-7b, also 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant’s contentions have been noted; however, they do not sufficiently support his request and do not serve as mitigation in his case.  The applicant’s records show he was punished twice under Article 15, UMCJ, for AWOL, and wrongfully appropriating the property of another Soldier.  The applicant also received a Special Court-Martial for AWOL.  

3.  The applicant’s commander stated the applicant advised him that he could not adjust to military life and wanted to talk to the doctors at mental health because of his nervousness.  The chaplain also spent many hours talking to the applicant, but was unable to please him.  The applicant stated that he wanted out of the Army anyway he could get out.  

4.  The commander further stated the applicant had advised him since he could not receive a discharge under the provisions of Army Regulation 635-209 he wanted to mess up enough so that he could receive a discharge under the provisions of Army Regulation 635-208.

5.  The applicant underwent a psychiatric examination and was found to be aggressive, passive type, chronic, severe, and manifested by inability to adjust to military environment and had impulsively reenlisted in the Regular Army with unrealistic expectations.  It was recommended the applicant received an administrative separation.

6.  The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

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.  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.

9.  In view of the foregoing, there is no basis for granting the applicant's request.

10.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 July 1966, the date of his discharge from active duty; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 18 July 1969.  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

__QAS __  __MDM__  ___J____  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.




      __
                CHAIRPERSON



INDEX

CASE ID
AR20060009498
SUFFIX

RECON

DATE BOARDED
20070222
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19660719
DISCHARGE AUTHORITY
AR635-208, Unfit for further military service
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
A70
2.

3.

4.

5.

6.



ABCMR Record of Proceedings (cont)                                         AR20060009498


6


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508