RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  07 February 2008
	DOCKET NUMBER:  AR20070013784 


	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. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Ms. Rose M. Lys

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, in effect, that his undesirable discharge, characterized as under other than honorable conditions be upgraded.

2.  The applicant states, in effect, that his unfavorable discharge characterization of service was due to his excessive alcohol consumption and that he is a member of Alcoholics Anonymous (AA) and has been alcohol-free for 18 years. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the Untied States Report of Transfer or Discharge) with a separation date of 21 September 1961 and a personal statement on VA Form 21-4138 (Statement to Support Claim) dated 19 September 2007.

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 11 January 1960, the applicant enlisted in the U. S. Army for 3 years.  Records show that he completed basic combat and advanced individual training and was awarded the military occupational specialty 721.00 (Communication Center Operations).  The highest rank he attained while serving on active duty was specialist four/pay grade E-4.

3.  On 15 May 1961, the applicant was convicted by summary court-martial for being absent without leave (AWOL) for 23 days.  He was sentenced to forfeiture of $50.00 pay per month for 1 month and hard labor without confinement for 30 days.

4.  On 5 August 1961, the applicant was convicted by a special court-martial for wrongfully appropriating a military vehicle and for unauthorized absence from his unit from on or about 1930 hours to 2340 hours on 31 July 1961.  His sentence consisted of forfeiture of $57.00 a month for six months, reduction to private, and to confinement at hard labor for six months. 

5.  On 11 August 1961, the applicant was advised of his rights and for the basis of the separation action.  He declined to consult with legal counsel.  He waived his right to have his case considered by an administrative board of officers, his right to personal appearance before a board of officers, and representation by counsel.  He also elected not to submit a statement in his own behalf.  He indicated that he understood the type of discharge that he might receive as a result of a separation for unfitness.

6.  On 16 August 1961, the unit commander requested a physical and psychiatric examination prior to elimination consideration.  

7.  On 22 August 1961, the examining medical officer stated that the applicant did not have any disqualifying physical defects sufficient to warrant disposition through medical channels.  The medical examination found him to be qualified for separation with a physical profile of 111121.  The psychiatrist concurred with the medical officer and stated that there were no disqualifying mental defects and that the applicant could distinguish right from wrong, that he had the mental capacity to understand and participate in board proceedings.  He further stated that the applicant displayed a pattern of immaturity, exhibited poor ability to adjust to military service, and that the applicant had lost all motivation for continued service.

8.  On 24 August 1961, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-208, for unfitness.  The commander stated that the applicant did not respond to military authority, that he was chronically AWOL, a constant trouble maker, immature and that he would not accept responsibility. 

9.  On 24 August 1961, the intermediate commander concurred with the company commander's recommendation that the applicant be separated from the service under the provisions of Army Regulation 635-208.  He stated the applicant waived his right to a hearing.  He further recommended an Undesirable Discharge Certificate be issued upon the applicant's separation.

10.  On 12 September 1961, the appropriate authority approved the recommendation for separation under the provisions of Army Regulation 635-208 for unfitness and directed that the applicant receive an Undesirable Discharge Certificate.  

11.  Accordingly, the applicant was undesirably discharged, under other than honorable conditions, on 21 September 1961, as confirmed by the DD Form 214 the applicant received at the time of his discharge.  This document further confirms that he completed a total of 1 year, 5 months, and 28 days of creditable active military service and that he accrued 73 days of time lost due to AWOL and confinement.

12.  On 26 September 1963, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and stated that the applicant had been properly discharged in accordance with the regulations in effect at the time.

13.  The applicant submitted a personal statement, dated 19 September 2007, which states in effect, that the reason he was discharged with an undesirable discharge was due to his excessive alcohol consumption.  He is a member of AA and has been sober for 18 years.  He states he has served his community and the State of Tennessee as a law enforcement officer for over 25 years.  He further states, in effect, that upgrading his discharge will allow him Veterans benefits.

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

2.  The evidence of record clearly shows that the applicant was mature enough to complete his training and receive promotion to specialist and to serve satisfactorily for 17 months prior to his first punishment for indiscipline.  There is no evidence to support his contention that his misconduct was the direct result of excessive alcohol consumption or abuse.  

3.  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.  The Board does not upgrade a discharge solely based on the passage of time nor to entitle a Soldier to Veterans benefits.

4.  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

__WDP__  __RML__  __QAS__  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.


____William D. Powers_____
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080207
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.