RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 September 2007
	DOCKET NUMBER:  AR20070005325 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Frank C. Jones II

Member

Ms. Carmen Duncan

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 be upgraded to honorable. 

2.  The applicant states, in effect, that due to his age and immaturity at the time, his discharge was unjust.

3.  The applicant provides a copy of a questionnaire about military service.

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.  On 26 October 1962, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training, to include the Basic Airborne Course, and was awarded military occupational specialty 311.17 (Infantry, Communications Specialist).  He was assigned to Fort Campbell, Kentucky, for duty with the 101st Airborne Division.

3.  On 2 July 1963, the applicant was promoted to private first class, pay grade E3. 

4.  On 18 March 1964, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for willful destruction of government property.  The punishment included reduction to private, pay grade E2.

5.  On 29 June 1964, the applicant was again promoted to private first class, pay grade E3.

6.  On 11 August 1964, the applicant accepted NJP for being disrespectful to a noncommissioned officer.  The punishment included an oral reprimand and 
7 days extra duty.

7.  On 10 October 1964, the applicant accepted NJP for disorderly conduct.  The punishment included a forfeiture of $29.00 pay per month for 1 month and 
14 days extra duty.

8.  On 8 December 1964, the applicant accepted NJP for being absent without leave (AWOL) for 1 day.  The punishment included reduction to private, pay grade E2 and 7 days restriction.

9.  On 26 January 1965, the applicant was convicted by special court-martial of AWOL (20 days).  His sentence consisted of forfeiture of $50.00 per month for 
3 months, confinement at hard labor for 3 months and reduction to private, pay grade E1.

10.  On 28 January 1965, a medical examination found him to be qualified for separation with a physical profile of 1.1.1.1.1.1.  At a psychiatric evaluation, the applicant was described as having a passive-aggressive personality, chronic, severe, manifested by poorly controlled, pleasure-oriented, impulsive behavior; resentment of lawful authority; poor motivation for military service; repeated infractions of the rules and regulations of military society; immature judgment and impaired insight.  He was under minimal stress.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

11.  On 15 February 1965, the applicant’s unit commander initiated separation under the provisions of Army Regulation 635-208 for unfitness.  The commander stated that the applicant had a very poor attitude and had to be supervised on all duties; that he continually broke the rules for his own pleasure; and that he was of no further use to the military service.  

12.  On 15 February 1965, the applicant received legal counseling and waived consideration of his case by a board of officers, waived a personal appearance, waived representation by counsel, and declined to submit a statement in his own behalf.




14.  The appropriate authority approved the separation action and directed issuance of an Undesirable Discharge Certificate.  On 3 March 1965, the applicant was discharged accordingly.  He had completed 2 years, 2 months, and 6 days of creditable active service and had 62 days of loss time due to AWOL and confinement.
 
15.  There is no evidence that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  The regulation further provides that: "the setting of arbitrary standards, such a certain number of trials by courts-martial, as a prerequisite to administrative elimination as a test of 'effective rehabilitation' violates the concept of individual evaluation."  If, after examination by a medical officer or psychiatrist, there appears to exist mental or physical disability that is the cause of unfitness, a board of medical officers will be convened.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.




3.  The evidence of record clearly shows that the applicant was mature enough to complete his training and receive promotion to private first class and to serve satisfactorily for 17 months prior to his first punishment for indiscipline.  Therefore, his argument that he was young and immature is not sufficiently mitigating to warrant upgrade of his discharge.

4.  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 has failed to submit evidence that would satisfy the aforementioned requirement.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LDS _   _  __FCJ __  _CD ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.






_     Linda  D . Simmons___
          CHAIRPERSON




INDEX

CASE ID
AR20070005325
SUFFIX

RECON
  
DATE BOARDED
20070906
TYPE OF DISCHARGE
UD,
DATE OF DISCHARGE
19650303
DISCHARGE AUTHORITY
AR 635-208. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.500
2.

3.

4.

5.

6.