RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060013678 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Linda Simmons

Chairperson

Mr. Jerome Pionk

Member

Mr. Eddie Smoot

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 general discharge be upgraded to honorable.

2.  The applicant states that he was young and dumb.

3.  The applicant provides two letters, dated 6 September 2006 and 
28 December 2006, from a Member of Congress. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 15 September 1961.  The application submitted in this case is dated 
24 August 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 was born on 10 January 1943.  He enlisted on 13 December 1960 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 710.00 (clerk).  
4.  The applicant’s DA Form 24 (Service Record) shows that he went absent without leave (AWOL) on 6 May 1961 and returned to military control on 8 May 1961.  This form also shows that he received “good” conduct and efficiency ratings during the period 15 May 1961 through 3 June 1961 and he received “unsatisfactory” conduct and efficiency ratings during the period 4 June 1961 through 5 September 1961.   

5.  On 14 August 1961, the applicant underwent a psychiatric evaluation and was diagnosed with schizoid personality, chronic, moderate (existed prior to service). The psychiatrist recommended an administrative separation.  

6.  On 21 August 1961, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-209 due to unsuitability.  He cited that the applicant was unfit for further military service and that his mental attitude, interests, attempt to commit suicide on 17 August 1961 by cutting his wrists, and inability to get along with other enlisted members caused him to be a detriment to his unit and to the military service.  He recommended that the applicant be furnished an honorable discharge.  

7.  On 25 August 1961, after consulting with counsel the applicant declined counsel, waived a hearing before a board of officers, and elected not to submit a statement on his own behalf.    

8.  On 25 August 1961, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.  

9.  On 15 September 1961, the applicant was discharged with a general discharge under the provisions of Army Regulation 635-209 for unsuitability due to character and behavior disorders.  He had served 9 months and 1 day of active creditable service with 2 days of lost time due to AWOL.

10.  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.

11.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  

12.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  


DISCUSSION AND CONCLUSIONS:

1.  Although the applicant was 17 years old when he enlisted, he successfully completed basic combat training and advanced individual training.  Therefore, age is not a sufficiently mitigating factor.  

2.  The applicant’s brief record of service included “good” and “unsatisfactory” conduct and efficiency ratings and 2 days of lost time.  Therefore, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulation with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  Records show the applicant should have discovered the alleged injustice now under consideration on 15 September 1961; therefore, the time for the applicant to file a request for correction of any injustice expired on 14 September 1964.  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

LS_____  __JP____  __ES____  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.



___Linda Simmons______
          CHAIRPERSON




INDEX

CASE ID
AR20060013678
SUFFIX

RECON

DATE BOARDED
20070508
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19610915
DISCHARGE AUTHORITY
Army Regulation 635-209
DISCHARGE REASON
Unsuitability
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.000
2.

3.

4.

5.

6.