RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 February 2008
	DOCKET NUMBER:  AR20070013857 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Carmen Duncan

Member

Ms. Rea M. Nuppenau

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 discharge be upgraded.

2.  The applicant states that he was injured during a parachute jump in Germany. He was hospitalized for a back injury.  He now knows that his social demeanor changed at that time.  If the physicians had understood the (psychological) effects (of his injury), his discharge would have been something higher than undesirable.  He is getting older and needs this changed for medical reasons and for any back benefits that he may be entitled to.  He has suffered severely from depression and alcoholism.  He has been cured of alcoholism.  He now realizes that this started after the injury when his parachute did not open and he landed on his back and head.  

3.  The applicant provides no additional evidence.

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 was inducted into the Army on 3 October 1960.  He was honorably discharged on 7 February 1961 for the purpose of enlisting in the Regular Army on 8 February 1961.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 111.17 (Light Weapons Infantryman).  He completed basic airborne training.  

3.  On 21 September 1961, the applicant was convicted by a summary court-martial of sleeping while on guard, of being absent without leave (AWOL) from on or about 5 September to on or about 7 September 1961, and of breaking restriction.  He was sentenced to confinement at hard labor for 3 months, to be reduced to Recruit, E-1, and to forfeit $28.00 pay for 3 months.

4.  On 9 February 1962, the applicant was convicted by a summary court-martial of being derelict in the performance of his duties in that he failed to turn in his individual weapon and locked said weapon in his wall locker.  He was sentenced to perform hard labor without confinement for 45 days, to be reduced to Private, E-2, and to forfeit $28.00 pay.

5.  The applicant arrived in Germany on 23 May 1962.  

6.  On 18 February 1963, the applicant was honorably discharged for the purpose of immediately reenlisting on 19 February 1963.

7.  The applicant’s service medical records show that he was in a parachute jump on 30 April 1963 and had a partial “Mae West.”  He landed hard on his heels and fell back on his back, flat.  He complained mainly of pain in the heels and in the back with no radiation.  He was diagnosed with lumbosacral strain and contusion of the back and heels.  

8.  Between 6 August 1963 and 26 February 1964, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on three occasions for the offenses of missing bed check (twice) and AWOL.

9.  The applicant departed Germany on 28 May 1964 and was assigned to Fort Bragg, NC.

10.  The applicant accepted NJP under Article 15, UCMJ on 23 February 1965 for not maintaining an off-post telephone and on 1 March 1965 for failure to repair.

11.  The applicant departed AWOL on 10 March 1965 and returned to military control on 31 March 1965.  He departed AWOL again on 9 April 1965 and returned to military control on 22 April 1965.

12.  On 29 April 1965, the applicant’s commander recommended he be separated under the provisions of Army Regulation 635-208 for unfitness.

13.  On 29 April 1965, the applicant was counseled and advised of the basis for the separation action.  He declined the opportunity of requesting counsel, did not request a hearing by a board of officers, and did not submit a statement in his own behalf.

14.  On 18 May 1965, the applicant received a psychiatric evaluation.  No disqualifying mental defects sufficient to warrant disposition through medical channels was found.  He was found to be mentally responsible, both to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

15.  On 28 July 1965, the appropriate authority approved the recommendation  and directed the applicant be furnished an Undesirable Discharge Certificate.

16.  On 19 August 1965, the applicant completed a separation physical and was found qualified for separation.

17.  On 7 September 1965, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-208 for unfitness, with an undesirable discharge and a characterization of service of under other than honorable conditions.  He had completed a total of 4 years, 7 months, and        14 days of creditable active service and had 101 days of lost time (AWOL and confinement). 

18.  On 26 February 1974, the Army Discharge Review Board (ADRB) denied the applicant’s request to upgrade his discharge to honorable.  In his request to the ADRB, the applicant stated that he was a good Soldier up until the last year he was in.

19.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one of more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

21.  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'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 applicant contends that his disciplinary problems began after he injured his back and head in a parachute fall in Germany in April 1963.  However, the evidence of record shows that he was court-martialed twice prior to his being assigned to Germany.  

3.  There is insufficient evidence to show that the applicant’s later misconduct was a result of the injuries he incurred during the April 1963 parachute fall and not a continuation of previously-demonstrated behavior.  Therefore, there is insufficient evidence that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __cd____  __rmn___  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.




__John T. Meixell_____
          CHAIRPERSON



INDEX

CASE ID
AR20070013857
SUFFIX

RECON

DATE BOARDED
20080214
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19650907
DISCHARGE AUTHORITY
AR 635-208 
DISCHARGE REASON
A51.00
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.

3.

4.

5.

6.