IN THE CASE OF:	  

		BOARD DATE:	        6 January 2009

		DOCKET NUMBER:  AR20080014225 


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 an upgrade of his discharge.

2.  The applicant states that he believes the character of discharge reflects his inability to perform assigned duties based on medical conditions (2 hernias). 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or discharge), dated 18 October 1962; a copy of his Standard Form (SF) 88 (Report of Medical Exam), dated 5 October 1962; a copy of his SF 601 (Immunization Record), dated on miscellaneous dates; copies of SF 600 (Chronological Record of Medical care), dated on miscellaneous dates throughout his military service; copies of his DD Forms 735 (Health Record-Abstract of Service), dated on miscellaneous dates; and a copy of his medical report, dated 18 June 1962, 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's records show he was inducted into the Army of the United States on 12 December 1961.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 111.00 (Light Weapons Infantryman).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant's records further show he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-1).  His records do not show any significant achievements or acts of distinction during his military service.

4.  On 23 May 1962, the applicant was referred to a psychiatric evaluation by his chain of command.  The military psychiatrist diagnosed the applicant with chronic and severe passive-dependency reaction, manifested by poor stress tolerance, nervousness, numerous somatic complaints having a tension origin and expression of gross dependency needs.  The military psychiatrist further recommended the applicant be separated from the Army.

5.  On 25 September 1962, in a statement, the applicant's platoon sergeant recommended the applicant be eliminated from the service and remarked that the applicant had been a source of problem and concern to the platoon.  He did not apply himself in any manner befitting of a Soldier and that prior to his operation, he did not even do the lightest duty without complaint.  He lacked responsibility and noted failure in himself.

6.  On 26 September 1962, in a statement, the applicant's platoon leader also recommended the applicant be discharged.  He remarked that the applicant was habitually on sick call and was never available for field duty.  He then became disillusioned by the Medical Corps and became a regular caller to the Office of the Inspector General.  The platoon leader added that for a short period, the applicant seemed a changed man; however, he reverted back to his old ways and insisted that if the unit did not discharge him, he would start civilian legal action.

7.  On 26 September 1962, by memorandum, the applicant's immediate commander initiated a recommendation for separation action against the applicant in accordance with the provisions of Army Regulation (AR) 635-209 (Personnel Separations), by reason of unsuitability.  The immediate commander remarked that the applicant was a chronic complainer who lacked responsibility towards himself and the service, and that due to his recent hernia operation he regressed and failed to apply himself.  
8.  On an unknown date, the applicant acknowledged having been notified of the recommendation for his discharge under the provisions of AR 635-209.  He also acknowledged that he was counseled by his unit commander and indicated that he was advised of the basis of the recommendation for elimination, was furnished a copy of the immediate commander's report and copies of statements to support the recommendation for his discharge.  He was also advised of his right to consult legal counsel prior to making his decision but declined to do so, waived hearing before a board of officers, and submitted a statement on his behalf.

9.  On 2 October 1962, the separation authority approved the applicant's discharge from the Army for unsuitability, under the provisions of AR 635-209 and directed he be furnished a General Discharge Certificate.  On 18 October 1962, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time confirms he was discharged for unsuitability in accordance with AR 635-209 with a character of service of under honorable conditions.  This form further shows he completed 10 months and 7 days of creditable active military service.

10.  The applicant submitted copies of his chronological record of medical care, dated on miscellaneous dates throughout his military service, that show he underwent a routine hernia operation on 4 June 1962 at Fort Hood, Texas, and that he was discharged to duty after his surgery.  

11.  AR 635-209, 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, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  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.  

12.  AR 635-200 (Personnel Separations – Enlisted Personnel), currently in effect, governs the policies and procedures for the separation of enlisted personnel.  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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant's contention that his inability to perform his duties was due to his medical condition is noted.  However, the applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

3.  The evidence of records shows that the applicant's chain of command determined that the applicant was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or that his psychiatric or physical condition was such as to not warrant discharge for disability.  Accordingly, his immediate commander initiated separation action against him.  The applicant's discharge was in accordance with applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to upgrade the applicant's discharge.

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)                                         AR20080014225



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014225



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1