IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080003860


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:

1.  The applicant requests that his general discharge under honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that his discharge is unjust and that there are discrepancies in his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214).

3.  The applicant provides no supporting documentation.

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 2 June 1961, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 716.10 (Personnel Specialist).  He was subsequently assigned for duty at Fort Hood, Texas.

3.  On 3 June 1963, the applicant was discharged to immediately reenlist.  He reenlisted for a period of 6 years.

4.  On 29 August 1963, the applicant was assigned for duty as a personnel specialist with the 3rd Administration Company in the Federal Republic of Germany.

5.  On 31 October 1963, the applicant was promoted to specialist five, pay
grade E-5. 

6.  On 25 September 1964, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for writing a check without sufficient funds in his checking account.  The punishment included a forfeiture of $55.00 pay per month for 1 month (suspended).  On 29 October 1964 the punishment was vacated.

7.  On 15 October 1964, the company commander wrote a statement concerning the applicant’s performance of duty.  It stated, in effect, that there had been numerous complaints about the applicant’s misconduct which included his writing a check without sufficient funds and not making it good within the prescribed 
5 days, failures to report for duty, and lying to his supervisors.  

8.  On or about 26 October 1964, the applicant’s commander advised him of his intention to separate him from the service for unsuitability.  The applicant acknowledged receipt of the commander’s report and copies of statements submitted in support of the recommendation for elimination.  He declined to request counsel and did not request a hearing by a board of officers.  He did not desire to make a statement on his own behalf.  

9.  On 4 November 1964, the applicant’s unit commander initiated separation action under the provisions of Army Regulation 635-209 for unsuitability.  The commander stated that the applicant was given a final physical examination and a psychiatric examination.  [These examinations are not available for review.] The commander recommended that the applicant receive a general, under honorable conditions discharge.

10.  On 8 December 1964, the appropriate authority approved the separation action and directed issuance of a General Discharge Certificate.  On 7 January 1965, the applicant was discharged accordingly.  He had completed a total of 
6 years, 3 months, and 24 days of creditable active service.

11.  There is no evidence that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  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, apathy, defective attitude, and the inability to expend effort constructively.  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.

13.  A review of the applicant’s available personnel records, including his two 
DD Forms 214 did not reveal any errors or discrepancies.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.  

2.  The applicant’s contention that his discharge was unjust is not supported by any evidence of record.  The applicant has not provided any evidence or argument sufficient to show that his discharge warrants an upgrade.

3.  The applicant’s contention that there are discrepancies in his DD Forms 214 is not supported by the available evidence.  Furthermore, the applicant has not provided any specifics with regard to what data he believes to be in error.


4.  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.

5.  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

___X____  ___X____  ___X____  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.




      _________X______________
      	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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080003860



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