IN THE CASE OF:	  

	BOARD DATE:	  29 May 2008

	DOCKET NUMBER:  AR20080002855 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant’s earlier requests that his undesirable discharge be upgraded to an honorable discharge.

2.  Counsel states that the applicant received two Article 15s while assigned to Company C, 2d Medium Tank Battalion, 68th Armor.  He was transferred to Company E, 2d Medium Tank Battalion, 68th Armor while he was under a suspended sentence.  Company E was in the same compound as Company C, where service members interacted frequently.  The record reflects that that transfer was the only rehabilitative attempt.  That one attempt was inadequate within the meaning of Army Regulation 635-208, paragraph 2a, to clearly establish that “reasonable attempts” at rehabilitation had been made.  

3.  Counsel states that the applicant remained in Company C too long when his record of misconduct indicated that rehabilitation should have been attempted earlier.  Transfer to Company E was ineffective as a “reasonable attempt” because the applicant was under a suspended sentence which violated the concept that the rehabilitative transfer provide a “fresh start.”  In addition, the applicant was transferred to another company within the same compound, which was too close to the applicant’s old unit to afford him a fresh start.  Also, no other reasonable attempts were made.

4.  Counsel states that the failure to follow the requirements of Army Regulation 635-208 constitutes prejudicial error.  Had proper rehabilitation been effected, the applicant would have become a good Soldier given the fact that he had received an Honorable Discharge for the purpose of reenlistment.  That failure to rehabilitate him violated Army Regulation 635-208, paragraph 2a; therefore, an upgrade of his discharge is warranted on either propriety or equitable grounds.

5.  Counsel states that no basis in fact supported the commanding officer’s conclusion that further rehabilitation efforts would be unsuccessful.  The second prerequisite to the discharge action, like the first, was never met.  Army Regulation 635-208, paragraph 2a, required that his commanding officer establish clearly that “further effort (to rehabilitate or develop him) is unlikely to succeed.”  That conclusion was to be based on an individual evaluation of the applicant as provided by Army Regulation 635-208, paragraph 5g.  His commanding officer failed to establish the probable effectiveness of future rehabilitation efforts.  

6.  Counsel states that, in the alternative, the applicant should have been discharged under Army Regulation 635-209, for unsuitability.  Army Regulation 635-208 applied to Soldiers who refused to adapt their behavior to Army standards.  By contrast, Army Regulation 635-209 applied to Soldiers who were simply unable to conform their behavior to Army standards.  The psychiatrist in this case noted that the applicant exhibited immature personality characteristics, suggesting that some aspect of his mental capacity was underdeveloped and therefore a personality disorder of some sort was present at the time.  Add to this a well-documented alcohol abuse issue for which the applicant was never given treatment or offered rehabilitation and it becomes clearly apparent that disposition under Army Regulation 635-209 was appropriate.  

7.  Counsel states that the applicant contends the commanding officer’s report was used improperly because the applicant was not shown this document before he waived his rights.  The applicant admits that he signed the waiver, which did state, albeit in boilerplate fashion, that he had seen the report.  However, the applicant maintains that he signed the statement in response to a veiled threat of incarceration in the form of a suspended sentence still looming over him.  He maintains that the statement was signed under duress.

8.  Counsel states that the applicant received insufficient counseling.  The applicant’s commanding officer counseled him during the discharge proceeding.  That was the same commanding officer who had already concluded that the applicant was not worthy of retention or further rehabilitation.  Although the regulation failed to specify who might serve as counsel for waiver purposes.  Army Regulation 635-208, paragraph 11b3 makes clear that “counsel at actual board hearings should serve as an advocate on behalf of the affected individual” and underscores the importance of the independence of counsel.  His election to waive his rights to counsel, a board hearing, and to make statements in his own behalf was invalid because it was not made knowingly because of the inadequate counseling afforded him and it was not made voluntarily because of the circumstances surrounding his execution of the form.  The applicant’s desire was to avoid incarceration at all costs.  He signed the waiver on the basis of the commanding officer’s advice and the veiled threat of confinement if he did not.  

9.  Counsel states that, furthermore, today’s regulations require that a service member be afforded at least 72 hours to consider the consequences of waiving fundamental rights.  Had this requirement been in force at the time of the applicant’s waiver he could have more intelligently responded to the situation confronting him.  Because his rights are substantively enhanced under current Army standards, equity requires an upgrade.  

10.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC82-04873 on 
27 October 1982 and in Docket Number AR20070009780 on 30 October 2007.

2.  The applicant’s counsel provides arguments that will be considered by the Board.

3.  The applicant enlisted in the Regular Army on 25 September 1958.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 131.20 (Armor Crewman).

4.  The applicant was assigned to Company C, 2d Medium Tank Battalion, 68th Armor, Germany, on 6 June 1959.  On 6 April 1960, he was promoted to Specialist Four, E-4.  He was honorably discharged on 28 September 1960 for the purpose of immediate reenlistment.  He reenlisted on 29 September 1960 for three years.  

5.  The applicant was reassigned to Company E, 2d Medium Tank Battalion, 68th Armor, Germany, on 3 October 1960.


6.  The applicant’s DA Form 24 indicates he was reduced to Private First Class, E-3 on 16 January 1961 due to misconduct.

7.  On 16 June 1961, the applicant was convicted by a summary court-martial of violating a general regulation by operating a privately owned vehicle without a valid driver's license or valid learner's permit.  He was sentenced to be reduced to the grade of Recruit, E-1; to forfeit $40.00 pay per month for 1 month; and to be confined at hard labor for 30 days.  

8.  On 6 July 1961, the applicant was convicted by a special court-martial of violating a lawful general regulation by operating a privately owned vehicle in the vicinity of Homburg, Germany, without a valid driver's license or a valid learner's permit; and by wrongfully having sexual intercourse with a German National Female, a married woman not his wife.  The approved sentence was confinement at hard labor for 6 months (suspended for 6 months) and a forfeiture of $40.00 pay for 6 months.

9.  On 3 August 1961, the Commander, Company E, 2d Medium Tank Battalion, 68th Armor, forwarded a recommendation to the battalion commander recommending the applicant be discharged under the provisions of Army Regulation 635-208.  He noted the applicant had been under the supervision of two company commanders, four platoon leaders, three platoon sergeants, and two tank commanders.  He had been counseled many times by those different supervisors with no apparent success.  Elimination under the provisions of Army Regulation 635-209 was not considered appropriate because of frequent incidents of a discreditable nature both with the military and civil authorities.

10.  On 4 August 1961, a Medical Corps psychiatrist found that while the applicant demonstrated many immature features, he did not demonstrate any significant disorder of thought, affect, memory, or sensorium.  He stated the applicant’s difficulties were primarily the result of certain immature features of his personality.  He further stated the applicant was medically and psychiatrically cleared for participation in necessary legal or administrative proceedings.  

11.  On 7 August 1961, the applicant acknowledged he was notified by the Commander, Company E, 2d Medium Tank Battalion, 68th Armor, that he was being recommended for discharge due to unfitness under the provisions of Army Regulation 635-208.  He waived his right to a hearing before a board of officers; he indicated that he did not desire a counsel; he indicated that he did not desire to submit written statements in his own behalf, and by signing the notification he indicated that he voluntarily signed it of his own free will.

12.  On 11 August 1961, the applicant's battalion commander recommended approval of the request for the applicant's discharge under the provisions of Army Regulation 635-208, with an undesirable discharge.  The battalion commander stated that upon his arrival in the battalion the applicant presented disciplinary problems that resulted in the imposition of non-judicial punishment on two occasions, which did not seem to have any bearing on the applicant's lackadaisical attitude toward military authorities and standards.  The battalion commander stated that in an attempt to rehabilitate the applicant, he was transferred to another company on 3 October 1960.  The battalion commander further stated that upon the applicant's transfer he had been either directly or indirectly involved in several incidents of a derogative nature and as a result had been court-martialed twice and non-judicial punishment had been imposed twice. 

13.  On 19 August 1961, the applicant underwent a separation physical examination in conjunction with his separation processing.  The Report of Medical History documenting this examination shows in item 20 that the applicant checked "No," indicating he did not have an excessive drinking habit.  However, ABCMR Docket Number AC82-04873 listed “Frequently drunk and often found asleep in another soldier’s bed or in the day room” as a material fact leading to his discharge.

14.  On 24 August 1961, the separation authority approved the applicant’s separation and directed that he receive an undesirable discharge.

15.   On 21 September 1961, the applicant was discharged under the provisions of Army Regulation 635-208 for unfitness, with an undesirable, under other than honorable conditions characterization of service, after completing a total of          2 years, 11 months, and 27 days of creditable active service.

16.  On 15 December 1980, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge. 

17.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found unfit for further military service.  The regulation stated, in pertinent part, that members who displayed undesirable habits and traits were subject to separation for unfitness, and an undesirable discharge was normally considered appropriate.  It further stated that a member being considered for elimination for unfitness must first appear before a medical officer or psychiatrist to determine if he/she has no disqualifying mental or physical condition that would warrant disposition through medical channels.  

The psychiatrist was required to indicate if the applicant was mentally responsible both to distinguish right from wrong and to adhere to the right and that he/she had the mental capacity to understand and participate in board proceedings.  

18.  Army Regulation 635-208, paragraph 2 stated that action would be taken only when it was clearly established that (2a) despite reasonable attempts to rehabilitate or develop the individual as a satisfactory Soldier, further effort was unlikely to succeed; or (2b) rehabilitation was impracticable, as in cases of confirmed drug addiction, or when the medical and/or personal history record indicated that the individual was not amenable to rehabilitation measures; and (2c) disposition under other regulations was inappropriate.

19.  Army Regulation 635-208, paragraph 5 stated (5a) it was recognized that all enlisted personnel with behavior problems could not be rehabilitated by proper leadership and/or psychiatric assistance.  The effective leader was able to rehabilitate only that percentage of persons with behavior problems who were amenable to leadership; (5b) the main objective of those and related regulations was the efficient utilization of manpower.  Retention or elimination of an individual was based on whether he was capable of rehabilitation into a useful Soldier; (5c) evaluation of the behavior of the individual must have been made in relation to the setting.  Identical behavior could be indicative of unsuitability or unfitness depending on the time and the place; (5d) to consider the Army was a social reform agency was a misconception; (5e) discharge was an appropriate procedure for an individual whose behavior rendered him repeatedly vulnerable to punitive or other adverse personnel action; (5f) the retention of an individual in service after he became a liability rather than an asset was costly; and (5g) the setting of arbitrary standards, such as a record of a certain number of trials by courts-martial, as a prerequisite to administration elimination and as a test of “effective rehabilitation” violated the concept of individual evaluation.  

20.  Army Regulation 635-209 set forth the basic authority for the separation of enlisted personnel for unsuitability.  That regulation provided, in pertinent part, that discharge for unsuitability would be effected when it was determined an individual was unsuitable for further military service because of character or behavior disorders in schizoid, paranoid, cyclothymic, inadequate or asocial personalities or immature reactions involving emotional instability, dependence, or aggressive reactions, as defined in Special Regulation 40-1025-2.  Separation for unsuitability could be accomplished in cases of individual manifesting such personality patterns when appropriate on the basis of adjustment, behavior, or performance in service.  

21.  Special Regulation 40-1025-2 (Nomenclature and Method of Recording Psychiatric Conditions) stated that the category of immaturity reactions applied  to physically adult individuals who were unable to maintain their emotional equilibrium and independence under minor or major stress because of deficiencies in emotional development.  In an emotional instability reaction, the individual reacted with excitability and ineffectiveness when confronted with minor stress.  A passive-dependency reaction was characterized by helplessness, indecisiveness, and a tendency to cling to others.  A passive-aggressive reaction was expressed in such reactions by passive measures, such as pouting, stubbornness, procrastination, inefficiency, and passive obstructionism.

22.  Army Regulation 635-200 governs 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.  

23.  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.  Counsel contended that the applicant’s one rehabilitative transfer from Company C to Company E of the 2d Medium Tank Battalion, 68th Armor, was inadequate within the meaning of Army Regulation 635-208, paragraph 2a, to clearly establish that “reasonable attempts” had been made to rehabilitate him.  Counsel contended that the applicant’s commanding officer failed to establish the probable effectiveness of future rehabilitation efforts in accordance with Army Regulation 635-208, paragraph 5g.  

2.  Counsel contended that the applicant’s transfer to another company within the same compound was too close to the applicant’s old unit to afford him a fresh start.  He contended that no basis in fact supported the commanding officer’s conclusion that further rehabilitation efforts would be unsuccessful, such conclusion to be based on an individual evaluation of the applicant as provided by Army Regulation 635-208, paragraph 5g.  
3.  Counsel failed to mention the guidance in the rest of Army Regulation       635-208, paragraph 2, and in the the rest of paragraph 5.  

4.  Army Regulation 635-208, paragraph 2b stated action would be taken only when it was clearly established that rehabilitation was impracticable, and it gave as an example when the personal history record indicated the individual was not amenable to rehabilitation measures.
 
5.  Army Regulation 635-208, paragraph 5, stated it was recognized that all enlisted personnel with behavior problems could not be rehabilitated by proper leadership and/or psychiatric assistance; the main objective of those and related regulations was the efficient utilization of manpower, the retention or elimination of an individual being based on whether he was capable of rehabilitation into a useful Soldier; discharge was an appropriate procedure for an individual whose behavior rendered him repeatedly vulnerable to punitive or other adverse personnel action; the retention of an individual in service after he became a liability rather than an asset was costly; and the setting of arbitrary standards, such as a record of a certain number of trials by courts-martial, as a prerequisite to administration elimination and as a test of “effective rehabilitation” violated the concept of individual evaluation.  

6.  The applicant was an armor crewman.  In order to efficiently utilize him and still give him an opportunity to rehabilitate, it may have been that the only option was to transfer him to another company within the same armor battalion on the same installation.  At this point in time, it is presumed that the rehabilitative transfer that was made was the only/best option available.  In addition, the regulation does not require that the rehabilitative transfer be between installations or even between units.  The applicant’s commander had noted that the applicant had been under the supervision of two company commanders, four platoon leaders, three platoon sergeants, and two tank commanders.  Those changes in supervision should have been sufficient transfers between supervisors to afford him an adequate opportunity to rehabilitate.

7.  The applicant’s personal history record showed that he had four instances    of non-judicial punishment, and two courts-martial while serving under two different company commanders and nine other, different supervisors.  That appears to be a clear indication that the applicant was not amenable to rehabilitation measures.  In addition, he was transferred to Company E on           6 October 1960.  His first court-martial was on 16 June 1961.  Therefore, it does not appear that he could have been transferred to Company E while he was “under a suspended sentence.”


8.  Counsel contended that the applicant should have been discharged under Army Regulation 635-209 for unsuitability.  

9.  There is no evidence to show that the applicant was unable to conform his behavior to Army standards.  To the contrary, the applicant already had one honorable discharge, indicating that he could conform his behavior to Army standards.  He may have exhibited immature personality characteristics; however, there was no indication in the psychiatric evaluation that those characteristics met the required definitions of immature reactions involving emotional instability, dependence, or aggressive reactions for separation under the provisions of Army Regulation 635-209.  Therefore, it appears that his command properly processed the applicant for discharge for unfitness rather than unsuitability.  

10.  The applicant contended that the commanding officer’s report was used improperly because the applicant was not shown this document before he waived his rights.  Although the applicant now contends that he signed the statement waiving his rights, including his right to counsel, in response to a veiled threat of incarceration, he provides no evidence that he signed the statement under duress.  He did not make that contention in either his original request or in his first request for reconsideration.

11.  Unfortunately for the applicant, he was separated 47 years ago and not today.  The regulation under which he was separated was the same regulation that all other Soldiers being processed for separation for unfitness were separated under.  There is no equitable basis that warrants his being considered for separation under current standards.  Given he was an experienced Soldier and considering his record of service during his second enlistment, the type of discharge he was given was and still is appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  __xx____  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 to amend the decision of the ABCMR set forth in Docket Number AC-82-04873, dated 27 October 1982.




 _    _____xxxx _____________
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080002855





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ABCMR Record of Proceedings (cont)                                         AR20080002855



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