IN THE CASE OF:	  

	BOARD DATE:	  15 July 2008

	DOCKET NUMBER:  AR20080005480 


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 (GD), under honorable conditions be upgraded to honorable. 

2.  The applicant states, in effect, that he had a drinking problem when he was in the service.  He states that he has been sober since his discharge, that he graduated from the University of Minnesota in 1962 with a Bachelor of Arts in Economics, that he has 2 children and 4 grandchildren and has been married for 50 years.  He has no police record.    

3.  The applicant provides a copy of his Transcript of Military Record and a copy of his GD Certificate.

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 15 September 1955, the applicant was inducted into the Army of the United States.  He attained the grade of private first class (PFC)/E-3.

3.  On 25 February 1957, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent from CBR class.  His punishment consisted of a reduction to private/E-2.

4.  On 1 April 1957, a special court-martial convicted the applicant of disobeying a lawful order to remain in the company area.  The resultant sentence included confinement at hard labor for 6 months and a forfeiture of $30.00 pay per month for 6 months.  The confinement was suspended for 6 months. 

5.  On 9 December 1957, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for going from his place of duty during an alert.  His punishment consisted of a 2 hours of hard labor for a period of 14 days.

6.  On 21 December 1957, a summary court-martial convicted the applicant of failing to go at the time prescribed to his appointed place of duty, formation.  The resultant sentence included performance of hard labor for a period of 30 days without confinement and a forfeiture of $70.00. 

7.  On 7 January 1958, a special court-martial convicted the applicant of wrongfully appropriating a 2½ ton truck, a value of about $6,708.00, the property of the U.S. Government.  The resultant sentence included confinement at hard labor for 6 months and a forfeiture of $65.86 pay per month for 6 months.  The applicant was confined for 110 days. 

8.  On 30 January 1958, the applicant underwent a neuropsychiatric examination. The applicant's background revealed difficulties based on parental friction, culminating in separation when the applicant was 11 years of age.  He lived with his mother, but got along poorly with her.  He completed high school with some minor difficulties and worked briefly prior to entering the service.  He had some civilian legal difficulties involving thievery and burglary.  He also indicated that he had every material advantage, but there was undoubtedly considerable emotion deprivation throughout his childhood.  He stated that he was extremely dissatisfied with the Army and could not adjust to taking orders and being told what to do.  His mental status examination revealed a friendly, cooperative, but disgusted and basically hostile individual.  There was no evidence of psychosis or psychoneurosis.  He was revealed as immature and rebellious as a reaction to his gear and anger toward authority figures.  He was extremely insecure and easily discouraged when things went against his liking.  He appeared to be of high intelligence, but his judgment was impaired, and there was no motivation for improvement or further military service.  He was diagnosed with a passive-aggressive reaction, chronic, severed, manifested by an inability to adjust to authoritarian situations, rebelliousness, misconduct, stubbornness, false independence, and impaired judgment.  The examiner recommended that he appear before a Board of Officers to determine whether he should be discharged by reason of unfitness.

9.  On 5 January 1958, the unit commander requested that a Board of Officers be convened to determine whether the applicant should be separated under the provisions of Army Regulation 635-208, by reason of frequent incidents of misconduct.  On 25 March 1958, the applicant's appearance before a Board of Officers was approved.   

10.  On 12 April 1958, a Board of Officers was convened and the applicant appeared with counsel.  Witnesses at the hearing indicated that the applicant had a drinking problem and was a shirker.  The Board found evidence of habits and traits of character manifested by alcoholism resulting in a record of service revealing frequent disciplinary actions and emotional instability.  He was recommended for separation of unsuitability with an Undesirable Discharge.

11.  On 25 April 1958, the separating authority approved the Board's findings and recommendations.  On 16 May 1958, the applicant was discharged under the provisions of Army Regulation 635-208 for unfitness – frequent incidents of misconduct, with an Undesirable Discharge.  He was credited with 2 years, 
4 months, and 14 days of active Federal service.  

12.  On 23 June 1981, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB found that his discharge was proper, but inequitable.  It considered his summary court-martial charges as relatively minor in nature and that his mental examination found him to have a passive-aggressive reaction.  It also noted that witnesses at his Board of Officers hearing indicated that he had evidence of habits and traits of known excessive alcoholism.  In view of the applicant's limited capability to serve due to alcoholism and a personality disorder, the ADRB upgraded the applicant's separation to a GD.  

13.  On 4 August 1981, the applicant was issued a Transcript of Military Record showing that he was discharged on 16 May 1958 with a GD.  

14.  Army Regulation 635-208 (Personnel Separations – Unfitness), then in effect, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a)  frequent incidents of a discreditable nature with civil or military authorities; b)  sexual perversion; c)  drug addiction; d)  an established pattern of shirking; and/or e)  an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

15.  Paragraph 3a of Army Regulation 635-212 stipulated that action would be taken to separate an individual for unsuitability when it is clearly established that it was unlikely that he would develop sufficiently to participate in further military training and/or become a satisfactory Soldier, and when a Soldier met retention medical standards.  An individual diagnosed with a character or behavior disorder as determined by a medical authority was normally discharged for unsuitability.  An individual discharged for unsuitability was furnished with an honorable or general, under honorable conditions discharge.   

16.  Army Regulation 635-209 (Personnel Separations – Unsuitability), also in effect at the time of the applicant's discharge, provided the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unsuitable for further military service.  This regulation, in pertinent part, provided that members with character and behavior disorders be subject to separation for unsuitability.  An honorable discharge or a GD was normally considered appropriate.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  A review of the applicant's record shows that he received 2 Articles 15, 
2 special courts-martial and a summary court-martial during his period of service. His major offense was the misappropriation of a 2½ ton truck and the circumstances of the incident were not contained in the official record. 

2.  The applicant underwent a mental health examination and was diagnosed with a passive-aggressive reaction, chronic and severe.  He indicated that the applicant had poor judgment and manifested by an inability to adjust to authoritarian situations.  As such, the psychiatrist recommended discharge under the provisions Army Regulation 635-208 for unfitness. 

3.  The applicant's case was considered by a Board of Officers who found evidence of habits and traits of character manifested by alcoholism resulting in a record of service revealing frequent disciplinary actions and emotional instability. The Board recommended an undesirable discharge by reason of unsuitability.  At the time the individual was discharged, Soldiers diagnosed with a character or behavior disorder as determined by a medical authority were normally discharged for unsuitability.  Soldiers discharged for unsuitability were furnished with an honorable or GD.  Although the Board of Officer's comingled their findings between discharging him based on alcoholism, emotional instability (based on a diagnosis of a passive-aggressive reaction), and frequent disciplinary actions (e.g., overlapping misconduct with unsuitability), it is clear that the Board's recommendation was that he be separated for unsuitability which only allowed an honorable or GD.  

4.  On 23 June 1981, the ADRB granted the applicant's request to upgrade his undesirable discharge to a GD based on equity; i.e., the mitigating circumstances of alcoholism and a diagnosed passive-aggressive reaction.  Had he been given a GD in accordance with the regulations at the time of his discharge, at the time he submitted his request to the ADRB, he would have been making application for an honorable discharge.  

5.  It appears that there is sufficient mitigating evidence in the applicant's official record to support the original Board of Officer's decision that he should have been discharged by reason of unsuitability.  Therefore, in accordance with regulations at the time, the lowest type of discharge he could have received was a GD.  The applicant's service was characterized as Undesirable for 13 years before the ADRB upgraded it to a GD.   Given the foregoing, it would now be equitable to correct the applicant's record to show he was discharged on 16 May 1958 with an honorable discharge. 

BOARD VOTE:

__xxx___  __xxx___  __xxx___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was discharged on 16 May 1958 with an honorable discharge.




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       _    _______   ___
       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)                                         AR20080005480



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ABCMR Record of Proceedings (cont)                                         AR20080005480



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