IN THE CASE OF:	  

		BOARD DATE:	        18 DECEMBER 2008

		DOCKET NUMBER:  AR20080014046 


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 his undesirable discharge be upgraded to an honorable or general discharge. 

2.  The applicant states that his service was rated as excellent until about mid-February 1968, when he was rated to be unsatisfactory.  He also states that pressure from officers, noncommissioned officers (NCOs), and staff, as well as a lack of training during basic and advanced individual training played a major role in him not being able to perform better than he was able to.  He further states that he received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions, with the last time being caused by his mental stress and personal problems with his two children and his common law wife.  A lieutenant in the motor pool also had him change tires on and off a vehicle four or more times just for the fun of it.  He continued by stating that whatever he did was never good enough, that depression set in, and that his mental illness was labeled as being slow, lazy, irresponsible, and other things.  He also states that he wanted mental help, but was ignored, and that he went to the post exchange and let the employees see him walk out with a new suit.  He told the staff official that this was an attempt at reaching out for help, but that a sergeant told him he knew what the applicant was doing and that he might as well stop.  Additionally, he states that he was told that he would be discharged under honorable conditions, but that this was a lie.  He further states that at the time of his induction he was suffering from a mental stress disorder that progressed into severe depression, but that he was denied access to proper medical staff for a mental evaluation.  He also states that his 

records will show that his actions were made through an honest effort to try and be a good Soldier, but that lack of training and supervision, along with his personal and mental condition did not allow it to be, but that it should not have resulted in his undesirable discharge.

3.  The applicant provides, in support of his application, a self-authored letter, dated
7 July 2008; a portion of a document which recommended that he be discharged for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability); a portion of NJP under Article 15 of the UCMJ in which he appealed punishment on 27 March 1968; and the first page of a letter, dated 7 August 1968, in which his commanding officer recommended that he be required to appear before a board of officers for the purpose of determining whether he should be discharged before his expiration of his term of service under the provisions of Army Regulation 635-212.

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's military records show that he was inducted into the Army of the United States on 8 September 1967.  His induction physical showed that he was psychiatrically normal.  He completed basic and advanced individual training and was awarded military occupational specialty 94B (Cook).  He then departed for a tour in Germany on 9 February 1968.

3.  On 2 March 1968 the applicant accepted NJP under Article 15 of the UCMJ for being incapacitated for the proper performance of duties on 1 March 1968 as a result of his previous indulgence in intoxicating liquor.  His punishment consisted of restriction for 14 days and extra duty for 14 days.  

4.  On 16 March 1968 the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority on or about 3 March 1968, and remaining so absent until on or about 4 March 1968, failing to go at the time prescribed to his 
appointed place of duty on 3 March 1968, and breaking restriction on 3 March 1968.  His punishment consisted of a reduction in rank and pay grade from private (PV2)/
E-2 to private (PV1)/E-1, forfeiture of $45.00 pay per month for 2 months, extra duty for 14 days, and restriction for 14 days.  

5.  On 23 March 1968 the applicant accepted NJP under Article 15 of the UCMJ for failing to obey a lawful unit policy by bringing and/or consuming alcoholic beverages in the troop billets, and failing to obey a lawful order from his superior NCO.  His punishment consisted of forfeiture of $45.00 pay per month for 2 months and restriction for 60 days.  On 27 March 1968, the applicant appealed this punishment; however, on 1 April 1968 his appeal was denied.

6.  On 15 April 1968 the applicant was convicted by a special court-martial of one count of absenting himself without proper authority from his unit on or about 0030 hours, 30 March 1968 and remaining so absent until on or about 0300 hours, 
30 March 1968; three counts of breaking restriction; and one count of wrongfully communicating a threat to an NCO.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $68.00 pay per month for 6 months.  On 23 September 1968 the unexecuted portion of the applicant's confinement at hard labor was remitted.

7.  On 25 July 1968 the applicant was convicted by a special court-martial of stealing one suit, of a value of $81.00, which was the property of the European Exchange System.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $25.00 pay per month for 6 months.

8.  On 1 August 1968 the applicant's commanding officer advised him that he was recommending his discharge under the provisions of Army Regulation 635-212 because of his frequent delinquent incidents that resulted in judicial and nonjudicial punishment and his inability to accept and cope with military life.  He was also advised of his rights.

9.  On 8 August 1968, a medical examination was conducted on the applicant and he was found qualified for separation under the provisions of Army Regulation 635-212.

10.  On 9 August 1968 a psychiatric evaluation was conducted on the applicant and he was psychiatrically cleared for any action deemed appropriate by his command.

11.  On 10 August 1968 the applicant acknowledged that he had been advised by counsel of the basis for the contemplated action to accomplish his separation for unfitness under the provisions of Army Regulation 635-212.  He waived consideration 
of his case and personal appearance before a board of officers and elected not to 
submit statements in his own behalf.  He also waived representation by counsel.  He also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.  

12.  On 17 September 1968 the proper separation authority approved the applicant's discharge for unfitness under the provisions of Army Regulation 635-212 and waived the 60-day rehabilitation requirements specified in this regulation.  He also directed that the applicant be issued a DD Form 258 (Undesirable Discharge Certificate).  On 27 September 1968 the applicant was discharged accordingly.

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

14.  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.

15.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7a provides, in pertinent part, 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.  

16.  Army Regulation 635-200, paragraph 3-7b provides, in pertinent part, 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.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable or general discharge.

2.  The applicant's contentions regarding his mental state during his military service was considered, but not found to have any merit.  The applicant was found psychiatrically normal at the time of his induction and during his discharge proceedings.

3.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with applicable regulations and that his discharge 
accurately reflects his overall record of service.  The type of discharge directed was appropriate considering all the facts of the case.  The evidence of record also confirms that the rights of the applicant were fully protected throughout the separation process.

4.  The applicant’s record of service revealed NJP under Article 15 of the UCMJ on three occasions and two court-martial convictions in a 1-year period.  Based on the applicant's extensive record of indiscipline in such a brief time span, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  As a result, he is not entitled to either an honorable or general discharge.

5.  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.




      ________XXX______________
               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)                                         AR20080014046



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014046



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1