IN THE CASE OF:	  

		BOARD DATE:	  12 November 2008

		DOCKET NUMBER:  AR20080009455 


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, in effect, that the undesirable discharge (UD) of his deceased brother, a former service member (FSM), be upgraded.

2.  The applicant states, in effect, that the FSM’s recruiter did not exercise due care when confirming the FSM’s correct date of birth, age, legal name, and/or mental status during the enlistment process.  He indicates that medical evidence contained in the FSM’s records confirm the he was only 16 1/2 years old at the time of his enlistment in the Army, and that he was later diagnosed with  “pathological personality, inadequate type” and “borderline mental deficiency” during his military service.  He also points out that prior to his entry on active duty the FSM was confined to Thorn Hill and Morganza reformatories for juvenile offenders, having been diagnosed with “deep rooted psychological and developmental problems.”  The applicant also indicates that it is his assumption that had the discharge board been given the opportunity to view the FSM's complete records and neuropsychiatric evaluation it would have concluded the FSM’s enlistment was both illegal and erroneous and would have directed the FSM’s enlistment be voided.

3.  In support of his application the applicant provides a self-authored statement with seven attachments identified Certificate of Birth for R______ E_____ R___; Physical and Mental Examination for R___, Richard J___; Enlisted Record and Report of Separation – WD AGO Form 53-59 – Undesirable Discharge for R___, R______ J.; Summary of Neuropsychiatric Evaluations of R___, R______ J., dated 1 November 1948; Progress Notes, dated 6 October 1949 prepared by Mental Hygiene Consultation Services, 9th Infantry Division, Fort Dix, New Jersey; Certificate of Death for R______ J___ R___; Certificate of Birth of J____ R___, citing common parentage; and Obituary of R_____ J___ R___, Citing J____ R___ as brother.

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 FSM’s Enlistment Record (WD AGO Form 21) list his date of birth as
26 May 1930 in Item 1 (Date of Birth).  In Item 23 the FSM acknowledged that he would be tried by court-martial for fraudulent enlistment on the basis of securing an enlistment by means of any false statement, willful misrepresentation, or concealment as to qualification for enlistment.  The “Remarks” portion of this document shows that the applicant’s mother consented to the FSM’s enlistment in an affidavit and both the FSM and a recruiting officer authenticated this document with their signatures.

3.  The FSM’s record contains a copy of the affidavit of the FSM’s mother, dated 29 November 1947, in which she certifies she was the FSM’s mother and legal guardian, and verifies the FSM was born on 26 May 1930, and was 17 years of age at the time.  The affidavit also indicates the FSM’s date of birth was verified by a Certificate of Baptism.  The FSM’s mother and a recruiting official authenticated this document with their signatures and the document was notarized on 28 November 1947.  

4.  The FSM’s record contains a Physical and Mental Examination, dated 1 December 1947, which shows in Item 39 that the examining physician determined the FSM was mentally and physically qualified for service in the United States Army in a general service capacity.

5.  On 1 December 1947, the FSM enlisted in the Regular Army (RA) for three years and entered active duty.  He was awarded and served in military occupational specialty (MOS) 0590 (Duty Soldier).  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

6.  The FSM’s Service Record (WD AGO Form 24A) shows in Section 13 (Record of Trials by Courts-Martial), that on 13 September 1948 a Special Court-Martial (SPCM) found the FSM guilty of the following offenses:  absent without leave (AWOL) from on or about 2 March through on or about 9 March 1948; AWOL from on or about 31 March through on or about 15 April 1948; and breaking arrest on or about 8 March 1948.  The resultant sentence included confinement at hard labor for 1 month and a forfeiture of $55.00 per month for
5 months.

7.  Section 13 of the FSM’s DA Form 24A shows 2 Summary Courts-Martial (SCM) convictions.  The first on 14 October 1948 for being AWOL from on or about 28 September through on or about 3 October 1948, which resulted in a sentence of a forfeiture of $30.00.  The second on 21 October 1948 for being AWOL from on or about 18 through on or about 20 October 1948, which resulted in a sentence to confinement at hard labor for 15 days.

8.  The FSM’s record contains a Record of Determination (AG RAC Form 1-21), dated 25 January 1950, which shows he accrued 411 days of time lost during
9 separate periods of AWOL between 2 March 1948 and 9 August 1949, and
2 periods of confinement between 25 May 1948 and 31 October 1948.  

9.  The FSM’s record also contains a Summary of Neuropsychiatric Evaluation, dated 1 November 1948.  This document provides two summaries of the FSM’s mental status provided by a psychiatric social worker and the Chief, Mental Hygiene Consultation Service, Fort Dix, New Jersey.  This summary indicates the FSM was 16 1/2 years old at the time of his enlistment in the Army and provided a diagnosis of pathological personality, inadequate type, and borderline mental deficiency.  It also contained a recommendation that the FSM be separated from the military service.

10.  On 14 September 1949, a Board of Officers convened to consider the FSM’s disposition.  This board found, in effect, that the FSM was able to distinguish right from wrong and to adhere to the right, and that he was mentally capable of intelligently conducting or cooperating in his own defense.  The board finally recommended the FSM not be court-martialed and that he instead be expeditiously discharged under the provisions of Army Regulation 615-366 for 
aggravated AWOL and physical disability.  On 19 September 1949, the appropriate authority (a major general) approved the recommendation of the board of officers.

11.  A Headquarters, 9th Infantry Division Letter, dated 4 October 1949, indicated the charges against the applicant were quashed and that he would be discharged as a physically unfit deserter.  

12.  On 12 October 1949, the FSM was separated from active duty after completing 8 months and 17 days of creditable active military service and accruing 415 days of time lost due to AWOL and confinement.  The WD AGO 
Form 53-59 he was issued at the time confirms he was separated under the provisions of Section II, Army Regulation 615-366, by reason of physically unfit deserter, and that he was issued an UD.  

13.  The applicant provides a copy of the FSM’s birth certificate which shows his name as R_____ E_____ R___ vice R______ J. R___, and date of birth as
26 May 1931 vice 1930 as indicated in his records.

14.  The FSM twice petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB determined that the applicant’s discharge was proper and equitable, and it voted to deny his request on 25 May 1950 and again on 10 June 1953.

15.  Army Regulation 615-366, in effect at the time, set forth the authority for the separation of enlisted personnel of the Army.  Section II provided policies and procedures for the separation of physically unfit deserters and absentees.  An UD was normally considered appropriate for members separated under this provision of the regulation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the FSM’s UD should be changed because his recruiter did not confirm the FSM’s DOB, age, legal name, and mental status resulting in illegal and erroneous enlistment was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms that both the FSM and his mother provided the recruiter a copy of the FSM’s Certificate of Baptism to confirm that he was at least 17 years of age at the time of his 1 December 1947 enlistment in the Army, as evidenced by the 29 November 1947 notarized affidavit on file.  In addition, the FSM was found to be mentally and physically fit for military service by the 
appropriate medical officials as evidenced by the Physical and Mental Examination report prepared during the FSM's enlistment process, and was found mentally competent to participate in his separation processing as confirmed in the proceedings of the board of officers that considered his case.

3.  The evidence of record confirms the FSM entered active duty on 1 December 1947 and completed basic training and served through1 March 1948 before he committed his first AWOL offense.  This provides an indication of his physical and mental capabilities to successfully serve in the Army.  His separation processing was accomplished in accordance with the applicable regulation in effect at the time and his discharge accurately reflects his overall record of undistinguished service.  As a result, absent any evidence of error or injustice in the separation process, there is an insufficient evidentiary basis to support upgrading the FSM's discharge.

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 this requirement.

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)                                         AR20080009455



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ABCMR Record of Proceedings (cont)                                         AR20080009455



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