RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	21 August 2007  
	DOCKET NUMBER:  AR20070003335 


	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

Ms. Joyce A. Wright 

Analyst

The following members, a quorum, were present:


Mr. Conrad V. Meyer

Chairperson

Mr. Dale E. DeBruler

Member

Ms. Ernestine Moya

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 that his undesirable discharge, characterized as under other than honorable conditions (UOTHC) be changed to a medical discharge (by reason of physical disability).

2.  The applicant states, in effect, that he received an undesirable discharge and he feels that it should have been for medical disability reasons.  He has suffered from depression, anxiety, alcoholism, suicidal tendencies, and instability since he joined the military.

3.  The applicant provides no additional documentation in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant is requesting correction of an alleged error or injustice which occurred on 27 October 1966, the date of his discharge.  The application submitted in this case is dated 26 February 2007.

3.  The applicant's record shows he enlisted in the Regular Army on 28 April 1964.  The applicant successfully completed basic combat training at Fort Gordon, Georgia, and attended advanced individual training at Aberdeen Proving Grounds, Maryland, for training in military occupational specialty (MOS) 55B, Ammunition Storage Specialist.  

4.  On 13 October 1964, he was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 1 October 1964 to 12 October 1964.  His punishment consisted of a forfeiture of pay and 14 days restriction and extra duty.
5.  The applicant was promoted to pay grade E-3 on 13 March 1965.  He served until he was honorably discharged on 24 June 1965, for immediate reenlistment. He reenlisted on 25 June 1965.  He served in Korea from 9 February 1965 to 9 March 1966.   

6.  Between 5 January 1966 to 2 May 1966, he received nonjudicial punishment (NJP) on two occasions under Article 15, of the UCMJ, for being drunk and disorderly and using provoking words toward a military policeman, and for being AWOL from 1 to 2 May 1966.  His punishments consisted of a reduction to pay grade E-2, a forfeiture of pay, and restriction and extra duties. 

7.  On 24 May 1966, the applicant was convicted by a summary court-martial of being AWOL from 3 May 1966 to 17 May 1966.  His sentence consisted of a forfeiture of pay.

8.  On 6 July 1966, the applicant was convicted by a special court-martial of being AWOL from 1 June 1966 to 20 June 1966.  His sentence consisted of confinement at hard labor for 6 months and a forfeiture of pay for 6 months.

9.  The applicant underwent a separation medical examination on 30 August 1966.  He was diagnosed as having an emotionally unstable personality, chronic, moderate, LOD (Line of Duty), no EPTS (existed prior to service).  He was found qualified for discharge with a 111111 physical profile. 

10.  On an unknown date, the applicant was informed that he was being recommended for discharge under the provisions of Army Regulation 635-212.  This document is unavailable for review.

11.  On 17 September 1966, the applicant consulted with counsel and waived his rights.

12.  On 24 September 1966, the applicant's commander recommended that he be discharged from the service under the provisions of Army Regulation 635-212, for unfitness.  He based his recommendation on the applicant's pattern of shirking by being AWOL more than once, two courts-martial, three Article 15s, and his negative attitude towards the service.  He was advised of his options.

13.  The applicant underwent a mental status evaluation on 12 October 1966.  He was diagnosed as having an emotionally unstable personality, chronic, moderate, manifested by rapidly fluctuating attitudes, impulsivity, ineffectiveness, and hypochondriasis.  The psychiatrist, a medical corps major, indicated that he had no mental defects sufficient to warrant separation from the service under the provisions of Army Regulation 635-40A and 635-40B.  He was mentally responsible to distinguish right from wrong and to adhere to the right.  He possessed the mental capacity to understand and participate in board proceedings.  The psychiatrist indicated that the final decision regarding disposition of the applicant rested with command.  He opined that the applicant should be separated administratively under the appropriate regulation. 

14.  On 21 October 1966, the separation authority approved the recommendation for the applicant's discharge and directed that he be furnished an undesirable discharge.  The applicant was discharged on 27 October 1966, in the pay grade E-1.  He had a total of 2 years and 8 days of total active service and had 162 days of lost time due to AWOL and confinement.  

15.  On 19 November 1969, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

16.  Army Regulation 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 3-7b, 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.

18.  Army Regulation 635-200, paragraph 3-7a, also 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.







DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant had a pattern of shirking by being AWOL more than once, received two courts-martial, three Article 15s under the UCMJ, and had a negative attitude toward service which contributed to his discharge under the provisions of Army Regulation 635-212, for unfitness.  He was issued an undesirable discharge, characterized as UOTHC.

2.  The applicant has provided insufficient evidence to show that his discharge was unjust and that he should have been medically discharged.  He also has not provided evidence sufficient to mitigate the character of his discharge.

3.  The applicant alleges that his discharge should have been for medical reasons and that he had suffered from depression, anxiety, alcoholism, suicidal tendencies, and instability since he joined the service.  He was diagnosed as having an emotionally unstable personality, chronic, moderate; manifested by rapidly fluctuating attitudes, impulsivity, ineffectiveness, and hypochondriasis.  He had no mental defects sufficient to warrant separation through medical channels.  He was mentally responsible to distinguish right from wrong and to adhere to the right.  He possessed the mental capacity to understand and participate in board proceedings.  He was separated administratively under the provisions of Army Regulation 635-212, for unfitness.

4.  There is no evidence to show that he was recommended for appearance before a Medical Evaluation Board (MEB) or any form of physical disability processing prior to his discharge.  

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___CM___  __DD___  __EM___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




___    Conrad V. Meyer_________
          CHAIRPERSON




INDEX

CASE ID
AR20070003335
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070821
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19661027
DISCHARGE AUTHORITY
AR 635-212
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.