RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 July 2007
	DOCKET NUMBER:  AR20070000901 


	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.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. John Slone

Chairperson

Mr. David K. Haasenritter

Member

Ms. LaVerne M. Douglas

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, correction of his discharge.

2.  The applicant states, in effect, that he suffered from a mental illness
(i.e., depression) because of the environment and fear of going into combat.  He also states, in effect, that he completed 18 months of military service with good character; however, he was discharged for unsuitability.

3.  The applicant provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on
7 November 1961, the date of his discharge from the Army.  The application submitted in this case is dated 4 January 2006 (sic).

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 service records show that he enlisted for a period of
3 years and entered the Regular Army on 20 May 1960.  He was trained in, awarded, and served in military occupational specialty (MOS) 714 (Mail Clerk). The applicant was assigned to Detachment, Army Medical Section, U.S. Army Tripler General Hospital, U.S. Army Hawaii from 8 March 1961 to 5 November 1961.  The highest rank he attained was private first class/pay grade E-3.

4.  The applicant’s military service records contain a DD Form 789 (Unit Punishment Record).  This document shows that the applicant accepted non-judicial punishment for failing to report to his place of duty at the proper time on
1 June 1961 and 2 June 1961.  The imposed punishment was reduction to the grade of private/pay grade E-2.  This document also shows that the applicant accepted non-judicial punishment for failing to perform his cleaning detail in the barracks on 27 July 1961.  The imposed punishment was 14 days extra duty for 2 hours per day.

5.  The applicant’s military service records contain a DD Form 96 (Disposition Form), dated 11 July 1961, subject: Request for Reclassification of MOS.  This document shows that the master sergeant serving as Noncommissioned Officer in Charge of the Postal Section requested that the applicant be reclassified from MOS 714 (Postal Clerk) into another MOS based on his inefficiency, discourtesy to patrons, and need for constant and direct supervision at all times.  The applicant was subsequently reclassified into MOS 540 (Duty Soldier).

6.  The applicant’s military service records contain an ARH-MED Form 108, dated 8 September 1961, subject: Request for Release of EM [Enlisted Member] Assignment.  This document shows that the captain serving as Chief, Motor Transportation Section, stated that the applicant had been assigned to the Motor Pool for approximately 3 weeks, was late for duty almost every single day, found asleep on duty, and could not perform the most menial task without close supervision.  The captain also stated that he considered it hopeless to attempt further efforts to rehabilitate the applicant.

7.  The applicant’s military service records contain a Headquarters, Tripler U.S. Army Hospital (Hawaii), Certificate (ARH-MED Form 297), dated 19 September 1961.  This document shows that the lieutenant colonel serving as Chief, Neuro-psychiatric Service, prepared and certified a Report on the Neuropsychiatric Examination of the applicant.  This document shows, in pertinent part, “that after careful consideration the diagnosis was found to be passive-aggressive reaction, chronic, severe; manifested by refusal to adjust and adapt to the military service.” The report also states, in pertinent part, that “[t]his individual is not a mentally defective individual.  His behavior is not due to emotional problems of a neurotic or psychotic nature, but rather is the result of deeply ingrained defects in the development of his personality, attitudes, and traits of character.  There is no evidence of neurosis, psychosis or organic brain disease.”  This document further shows that the lieutenant colonel recommended that no further attempt at rehabilitation be made and that the applicant be placed before a board of officers with a view to separation from the service.

8.  On 10 October 1961, the unit commander notified the applicant of his intent to initiate action to discharge him from the U.S. Army under the provisions of Army Regulation 635-209 for unsuitability.  The recommendation was based on the applicant’s passive-aggressive reaction, chronic, severe behavior; manifested by refusal to adjust and adapt to the military service; and unsatisfactory duty performance.

9.  There is no indication in the applicant’s military service records that shows he suffered from depression.
10.  On 10 October 1961, the applicant consulted with legal counsel and, after being advised of the basis for the contemplated separation, its effects, and the rights available to him, the applicant requested appearance before a board of officers.

11.  On 19 October 1961, the applicant requested that the Commanding General, Tripler U.S. Army Hospital, appoint military counsel to represent him in connection with the separation board proceedings.

12.  On 27 October 1961, the applicant waived his right to consideration of his case by a board of officers and personal appearance before a board of officers.  The applicant’s statement of waiver was witnessed by the major serving as military counsel and the first lieutenant serving as recorder.

13.  On 1 November 1961, the separation authority approved the applicant’s separation and directed that the applicant be discharged under the provisions of Army Regulation 635-209 for unsuitability.  He also directed that the applicant be furnished a DD Form 257A (General Discharge Certificate).  Accordingly, the applicant was discharged on 7 November 1961.

14.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant on the date of his separation confirms that the applicant was issued a general discharge under honorable conditions.  This document also confirms that the authority for the applicant’s separation was Army Regulation 635-209 and that the Separation Program Number (SPN) for separation was "264".  This document also shows that the applicant completed
1 year, 5 months, and 18 days total active service.

15.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

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

17.  Army Regulation 635-209 (Personnel Separations – Discharge - Unsuitability), in effect at the time of the applicant's separation from active duty, established policy and provided procedures and guidance for eliminating enlisted Soldiers found to be unsuitable for further military service.

18.  Army Regulation 635-5-1 (SPN Codes), in effect at the time of the applicant's discharge, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  This regulation identifies the SPN code of "264" as the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-209 by reason of unsuitability based on character and behavior disorders.

19.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

20.  Army Regulation 635-200, 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 the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be corrected because he suffered from depression that resulted from his environment and the fear of going into combat.  He also contends, in effect, that he completed
18 months of military service with good character; however, he was incorrectly discharged for unsuitability.

2.  There is no evidence of record, and the applicant fails to provide documentary evidence, that shows the applicant was assigned to a combat zone or was even alerted for movement for assignment to a combat zone.  In fact, the evidence of record shows that the applicant served in the United States during the entire period of his military service and, when he did serve overseas, he was assigned to a medical unit in the State of Hawaii.  The evidence of record also shows that the applicant’s behavior was not due to emotional problems of a neurotic or psychotic nature, but rather were the result of deeply ingrained defects in the development of his personality, attitudes, and traits of character.  There is no evidence of record that shows the applicant suffered from depression.  Thus, the evidence of record fails to support the applicant’s claim that his environment and the fear of going into combat caused him to suffer from depression.
3.  The evidence of record shows that the applicant served on active duty less than 18 months.  During his period of military service, non-judicial punishment was imposed against the applicant on at least two occasions; for failing to report to his place of duty at the proper time and for failing to perform his cleaning detail in the barracks.  In addition, the applicant was recommended for reclassification out of MOS 714 (Postal Clerk) based on his inefficiency, discourtesy to patrons, and need for constant and direct supervision at all times.  Furthermore, the applicant failed to perform his required duties as a Duty Soldier in the Motor Pool during the period of his rehabilitative assignment.  Thus, the evidence of record clearly shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of unsatisfactory service for the period of service under review.

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 November 1961; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
6 November 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

___JS ___  ____DKH  ___LMD _  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.




      ___John Slone____
          CHAIRPERSON




INDEX

CASE ID
AR20070000901
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/07/17
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19611107
DISCHARGE AUTHORITY
AR 635-209
DISCHARGE REASON
Unsuitability
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.