IN THE CASE OF:	

		BOARD DATE:	        30 September 2008

		DOCKET NUMBER:  AR20080009046 


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 under honorable conditions discharge be upgraded to an honorable discharge.  He also requests restoration of his rank of specialist four, E-4 with all pay and allowances, to include all benefits.  

2.  The applicant states, in effect, that he suffered from mental illness at the time of the events surrounding his discharge.  During his trial by a special court-martial, his request for a mental health defense representative was apparently denied by the court.  He states he is currently being treated at the Department of Veterans Affairs (VA) for possible Post Traumatic Stress Disorder. His military file does not contain the fact that he experienced sexual abuse from a black noncommissioned officer while he was assigned to a Headquarters and Headquarters Company in Germany.  He alleges that the sexual abuse had an extreme effect on his mental state at the time, along with other mental factors.  He believes that the events surrounding his Article 15 were a set-up by a first lieutenant, whose objective was to punish him and not to seek counseling for him.  

3.  The applicant provides a copy of a letter, dated 2 December 1966, from his attorney; and a special court-martial appointing order, dated 23 November 1966 in support of his application.





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 enlisted in the Regular Army on 3 July 1962 for a period of three years.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 111.10 (light weapons infantryman).  He was assigned to Germany on 11 December 1962.  He was promoted to specialist four, E-4 in June 1964.  He was honorably discharged on 19 June 1964 for the purpose of immediate reenlistment.  

3.  The applicant reenlisted on 20 June 1964 for a period of three years.  

4.  On 19 February 1965, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure to report for reveille formation.  

5.  On 13 April 1965, the applicant accepted NJP under Article 15, UCMJ for failing to go at the time prescribed to his appointed place of duty.  

6.  On 14 December 1966, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 16 June 1966 to 28 July 1966 and an additional charge of AWOL from 12 October 1966 to 8 November 1966.  He was sentenced to confinement at hard labor for 6 months; a reduction to private, E-1; and a forfeiture of $86.00 pay for 6 months.  

7.  On 24 February 1967, the applicant accepted NJP under Article 15, UCMJ for failing to go to reveille formation.  

8.  The applicant underwent a psychiatric examination on 8 March 1967.  The psychiatrist indicated that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental 
capacity to understand and participate in board proceedings.  He was diagnosed as having a chronic personality disorder characterized by poor judgment, asocial behavior, difficulty with authority, inability to profit from experience, and no motivation to change this pattern of living.  The psychiatrist recommended separation under the provisions of Army Regulation 635-212.

9.  On an unknown date, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-212, based on unfitness.  He was advised of his rights.  The applicant consulted with legal counsel, waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and did not submit statements in his own behalf.  

10.  The separation authority approved the separation action under the provisions of Army Regulation 635-212, paragraph 6a(1) by reason of unfitness - frequent incidents of a discreditable nature with civil or military authorities and directed issuance of an Undesirable Discharge Certificate.

11.  On 11 April 1977, the Army Discharge Review Board (ADRB) upgraded the applicant’s undesirable discharge to a general under honorable conditions discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP).  

12.  On 30 May 1978, the ADRB reviewed the applicant’s upgrade to general under honorable conditions under the provisions of Public Law 95-126 and voted to affirm the upgrade.  

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

14.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.




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’s record of service shows he received three Article 15s and was convicted by a special court-martial for being AWOL during the period under review. 

3.  It is noted that the ADRB upgraded the applicant’s undesirable discharge to a general under honorable conditions discharge under the SDRP.  It appears the applicant’s discharge was reviewed under the Public Law 95-126 and his discharge upgrade was affirmed.  

4.  It appears the applicant’s overall record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant a fully honorable discharge or to restore his rank of specialist four, E-4 with all pay and allowances.

5.  The applicant's contentions were noted.  However, there is no evidence submitted or evidence of record which shows the actions taken in this case were in error or unjust.  

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 for correction of the records of the individual concerned.



      ______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)                                         AR20080009046



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ABCMR Record of Proceedings (cont)                                         AR20080009046



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