RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 30 August 2007
DOCKET NUMBER: AR20070005424
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. Mohammed R. Elhaj
Analyst
The following members, a quorum, were present:
Mr. Bernard P. Ingold
Chairperson
Mr. Thomas M. Ray
Member
Mr. Gerald J. Purcell
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 his Under Honorable Conditions Discharge be upgraded.
2. The applicant states, in effect, that he is seeking medical benefits through the Department of Veterans Affairs (DVA).
3. The applicant did not provide any documentation in support of his application.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests an upgrade of the applicants discharge.
2. Counsel states, in effect, that the applicant is seeking DVA benefits.
3. Counsel provided copies of the following documentations in support of the applicants request:
a. DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
b. DA Form 20 (Enlisted Qualification record).
c. DA Form 24 (Service Records).
d. Immunization Certificate.
e. Standard Form (SF) 88 (Report of Medical Examination) and SF 89 (Report of Medical History), Initial Enlistment Physical.
f. SF 88 and SF 89, Separation Physical.
g. SF 603 (Dental Health Record).
h. DD Form 735 (Health Record-Abstract of Service).
i. SF 600 (Chronological Record of Medical Care).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's records show that he enlisted in the Regular Army on 19 April 1961. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 111 (Light Weapons Infantryman). The highest rank the applicant held was private/pay grade E-2.
3. The applicant's records show that the applicant was awarded the Parachutist Badge and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-1). The records do not show any significant acts of valor during his military service.
4. Section 6 (Time Lost) of the applicants DA Form 24 (Service Records) show multiple entries of absent without leave (AWOL) and confinement during the periods as follows:
a. 2 September 1961 through 12 September 1961, AWOL, 11 days.
b. 29 December 1961 through 18 February 1962, AWOL, 52 days.
c. 19 February 1962 through 11 April 1962, Confined, 52 days.
d. 18 April 1962 through 26 June 1962, AWOL, 70 days.
e. 27 June 1962 through 16 August 1962, Confined, 51 days.
5. On 20 September 1961, charges were preferred against the applicant for being AWOL during the period on or about 2 September 1961 through on or about 13 September 1961.
6. Headquarters, 2nd Battle Group, 23rd Infantry, Summary Court-Martial Orders Number 82, dated 30 September 1961, show that the applicant was arraigned and tried by a Summary Court-Martial for AWOL during the period on or about 2 September 1961 through on or about 12 September 1961. He was sentenced to hard labor without confinement for 45 days, forfeiture of $55 pay for one month, and reduction to the grade of private/pay grade E-1. The sentence was approved and ordered executed on 30 September 1961.
7. Headquarters, 2nd Battle Group, 23rd Infantry Division, Summary Court-Martial Orders 8, dated 14 October 1961, show that the unexecuted portion of the sentence to hard labor for 45 days was suspended until 1 November 1961, at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence to confinement will be remitted without further action.
8. Headquarters, Special Troops Regiment, Fort George Meade, Maryland, Special Court-Martial Orders Number 201, dated 29 March 1962, show that the applicant was arraigned and tried on 27 February 1962 for being AWOL during the period on or about 29 December 1961 through on or about 19 February 1962. He pleaded guilty to the specification and the military judge found him guilty. He was sentenced to confinement at hard labor for 4 months, forfeiture of $55 pay for 4 months, and reduction to the grade of private/pay grade E-1.
9. Headquarters, Special troops Regiment, Fort George Meade, Maryland, Special Court-Martial Orders Number 250, dated 11 April 1962, show that the unexecuted portion of the sentence to confinement at hard labor for 4 months was suspended for 4 months, at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence to confinement will be remitted without further action.
10. Headquarters, Special troops Regiment, Fort George Meade, Maryland, Special Court-Martial Orders Number 535, dated 9 July 1962, show that the unexecuted portion of the sentence to confinement at hard labor was ordered executed and the applicant was ordered confined in the Post Stockade.
11. Headquarters, Special Troops Regiment, Fort George Meade, Maryland, Special Court-Martial Orders Number 601, dated 3 August 1962, show that the applicant was arraigned and tried on 26 June 1962 for being AWOL during the period on or about 18 April 1962 through on or about 26 June 1962. He pleaded guilty to the specification and the military judge found him guilty. He was sentenced to confinement at hard labor for 6 months and forfeiture of $55 pay for 6 months. The sentence was approved on 3 August 1962.
12. Headquarters, Special troops Regiment, Fort George Meade, Maryland, Special Court-Martial Orders Number 644, dated 15 August 1962, show that the unexecuted portion of the sentence to confinement at hard labor for 6 months was ordered remitted effective 17 August 1962.
13. On 25 July 1962, the applicant underwent a psychiatric evaluation and was found mentally responsible, able to distinguish right from wrong, and had the capacity to understand and participate in any board proceedings contemplated.
14. On 7 August 1962, the applicants immediate commander submitted a report of the applicants unsuitability in the form of a memorandum to the separation authority, recommending the applicants separation in accordance with paragraph 6 of Army Regulation 635-209 (Personnel Separation) for his phlegmatic attitude towards further retention in the service. He further stated that a board consisting of three members reviewed the applicants case and all concurred with the separation.
15. On 7 August 1962, the separation authority approved the applicants discharge under the provisions of Army Regulation 635-209 by reason of unsuitability and directed the applicant be furnished a General Discharge Certificate. The DD Form 214 the applicant was issued at the time of his discharge confirms he was discharged and his characterization of service was under honorable conditions. This form further confirms that he completed a total of 8 months and 3 days of creditable active military service and 236 days of lost time.
16. Army Regulation 635-209 (Personnel Separations), 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. Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his discharge should be upgraded to obtain Veterans Administration health benefits.
2. The applicant's record of service shows that he was charged with several counts of AWOL. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. After review of the applicants entire record of service, it is clear that his service did not meet the criteria for an honorable discharge. As a result, there is insufficient basis to grant a relief.
3. The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits. The ABCMR recommends the applicant consults with his local Veterans Administration for benefits he may be entitled to.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__bpi___ __tmr___ __gjp___ 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.
Bernard P. Ingold
______________________
CHAIRPERSON
INDEX
CASE ID
AR20070005424
SUFFIX
RECON
DATE BOARDED
20070830
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
19620817
DISCHARGE AUTHORITY
AR 635-209 .
DISCHARGE REASON
BOARD DECISION
(GRANT)
REVIEW AUTHORITY
ISSUES 1.
144.0000
2.
3.
4.
5.
6.
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