RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 January 2008
	DOCKET NUMBER:  AR20070011188 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Qawiy A. Sabree

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 an honorable discharge. 

2.  The applicant states, in effect, he would like for his discharge to be recharacterized to honorable.  He states at the time of his discharge he just wanted to go home.  His first line supervisor supported him but his lieutenant wanted him discharged.  As a result of his immaturity he did not fight his discharge, or understand he could finish his tour.  He never knew it was possible to appeal or ask for consideration until now.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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's military service records show that he entered active duty on 12 April 1962.  He had completed all the necessary training and was awarded the military occupational specialty (MOS) 111.00 (Light Weapons Infantryman).

3.  Between 16 September 1961 and 12 June 1962, the applicant was convicted by three summary courts-martial for the following reasons: failing to go to his appointed place of duty, being absent without leave (AWOL) during the period 
2-3 April 1962, and for missing bed check.  On 12 June 1962, the applicant's commander barred him from reenlistment.  On 18 June 1962, the applicant read and indicated he understood the allegations and elected not to make a statement.  However, he stated that his actions were done due to wrong influence and were during off duty hours and he didn't think he had been in the unit long enough to be barred from reenlistment.
4.  On 20 June 1962, a Board of Officers was appointed to consider whether the applicant should be separated prior to his expiration of term of service due to unsuitability.  On 5 July 1962, the applicant was directed to appear before the Board of Officers.  On 6 July 1962, the applicant acknowledged receipt of the notification to appear before the Board of Officers and he requested that his case be heard without delay and with counsel.

5.  On 7 July 1962, the Board convened.  The Board found that the applicant was unlikely to ever become a satisfactory Soldier due to character and behavior disorders, and that further attempts to rehabilitate or develop the applicant would be unlikely to succeed.

6.  A DA Form 37 (Report of Proceedings of Board of Officers) dated 9 July  
1962 shows that the applicant was recommended for discharge for unsuitability and that he be furnished a General Discharge Certificate.

7.  On 10 August 1962 the applicant was discharged.  The DD Form 214 he was issued shows he completed a total of 1 year, 3 months, and 27 days of active military service and that he accrued 2 days of time lost.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

9.  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.

10.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

11.  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 requests that his general discharge be upgraded to a honorable discharge.

2.  The applicant's statement that at the time of his discharge he just wanted to go home, his first line supervisor supported him but his lieutenant wanted him discharged and because of his immaturity he did not fight his discharge and he did not understand he could finish his tour, is noted.  However, this is not sufficient to warrant a change to a properly issued discharge.

3.  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.  His unsuitability rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__QAS__  __CLG___  __JRS__  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.




___Curtis L. Greenway__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080115
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.