IN THE CASE OF:	  

		BOARD DATE:	  10 February 2009

		DOCKET NUMBER:  AR20080015453 


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 discharge.  In the event an upgrade to an honorable discharge is disapproved, the applicant further requests that his undesirable discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states, in effect, that he suffered a combat wound on 25 June 1951 while serving in the Republic of Korea when his unit was overwhelmed by hostile forces.  He further states that this traumatic experience left him both physically and mentally impaired and caused him to suffer a mental breakdown.  The applicant contends that post-traumatic stress caused him to be absent without leave (AWOL) from his unit.

3.  The applicant states that upon his return to the United States, he was assigned to Fort Benning, Georgia, where he continued to experience active symptoms of paranoia and depression which caused him to be AWOL again.  He also states that when his symptoms improved, he returned himself to military control and was subsequently confined in the stockade.

4.  The applicant continues that when one of the officers he had served with in Korea learned of his plight, he intervened and had the applicant reassigned to a duty station in California and then to Fort Lewis, Washington, where he began hallucinating and hearing voices with homicidal and suicidal thoughts.  The applicant states that following his receipt of treatment, he was returned to Fort Benning, Georgia, where he departed AWOL again and was subsequently discharged.  He concludes that he did not receive appropriate treatment for his condition and his discharge was too harsh.

5.  The applicant informed a Member of Congress that although he has attempted to have his case reviewed many times over the years, it has been to no avail.  The applicant requested the Member of Congress' assistance with having his discharge upgraded; receiving proper benefits, compensation, and other entitlements; and receiving health benefits to aid in the treatment and care of his illnesses.

6.  The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States) and two character reference letters as documentary evidence in support of this 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 record shows he enlisted in the Regular Army on 13 September 1950.  His military occupational specialty at the time of separation was Light Weapons Infantryman (Rifleman).  The applicant received the Purple Heart for sustaining a gunshot wound to his right foot while serving in the Republic of Korea.  The applicant completed a total of 2 years, 3 months, and 21 days of active federal service prior to being discharged on 16 November 1954.  The rank he held at the time of his discharge from active duty was private/pay grade E-1.

3.  A certificate of the applicant's mental condition was rendered by a psychiatrist assigned to the Neuropsychiatric Service of the United States Army Hospital located at Fort Benning, Georgia, on 20 July 1954.  The psychiatrist stated that the applicant was evaluated by a psychiatrist at Fort Lewis, Washington, in May 1954.  The applicant had requested help because he was afraid that he might go AWOL.  The applicant indicated, in effect, that he did not like Fort Lewis and that he was unable to tolerate people yelling at him.  He stated that when people yelled at him, his mind told him to react violently, and that when his mind told him to do something he was unable to control himself.

	a.  The examiner noted that the applicant had served in Korea as a rifleman for 9 months prior to receiving treatment for about 7 days for combat exhaustion. The examiner also noted that the applicant had been AWOL on three occasions: for 8 days in 1951, for 1 month in 1952, and for a continuous period of 5 months since his return from the Republic of Korea.  It was also noted that the applicant had apparently not gotten into any trouble during his periods of AWOL.

	b.  The examiner indicated that the applicant showed poor judgment in his military duties and his personal life, resulting in seven Article 15s.  He was impulsive and somewhat immature.  He had no disqualifying mental or physical defects and was mentally responsible, able to distinguish right from wrong, and to adhere to the right.

	c.  The examiner opined that the applicant spoke quite coherently, there was no disturbance in his trend of thought, and that there was no evidence of delusions or hallucinations.  The applicant was fully oriented and although he was somewhat anxious, he was not depressed.

	d.  The examiner further opined that the applicant's condition existed prior to entering military service and that he had a marked incapacity for further service.

	e.  The findings of the applicant's mental evaluation were that he was not insane (psychotic), that he possessed sufficient mental capacity to know the difference between right and wrong, that he should be able to adhere to the right and refrain from the wrong, and that he was considered mentally responsible for his own acts.  The examiner opined that the applicant had no mental or physical disease which warranted retirement or other disposition through medical channels.

	f.  The examiner noted that the applicant was close to developing a serious mental illness which would require prolonged hospitalization and treatment.  He opined that confinement, punishment, and the like would in no way serve to rehabilitate the applicant and would probably precipitate a schizophrenic break from reality.  The examiner concluded that this situation could be averted by expeditiously administratively discharging the applicant from military service under the most appropriate regulation.

4.  The applicant's record is void of the separation packet containing the specific facts and circumstances surrounding his discharge processing from the Army; however, it does contain a properly constituted DD Form 214 that confirms the applicant was discharged from the Regular Army under the provisions of Army Regulation 615-368 (Enlisted Men - Discharge) for unfitness due to traits of character rendering retention in service undesirable.  This form also shows the applicant was AWOL for a cumulative total of 349 days.

5.  The applicant provides two personal character references from friends attesting that in addition to being a proud great-grandfather and friend to his community, he is also loyal, trustworthy, honest, helpful, and deeply religious.

6.  The Member of Congress, from whom the applicant requested assistance, requests a response to the concerns raised by his constituent and any assistance available under the applicable laws and regulations.

7.  Army Regulation 615-368, then in effect, set forth the policy for administrative separation for unfitness.  Paragraph 1 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally issued.

8.  Army Regulation 635-200 (Personnel Separations), 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.

9.  Army Regulation 635-200, paragraph 3-7b, provides 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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The available record shows that the applicant was AWOL on three separate occasions for a combined total of 349 days.  It appears that the command attempted to assist the applicant in performing and conducting himself to Army standards by granting him a rehabilitative transfer and psychiatric treatment.  The applicant apparently failed to respond appropriately to these efforts and continued with his infractions of discipline.

3.  There is no overt evidence of arbitrary or capricious actions by the command.
In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations at the time.

4.  Although the applicant contends that his discharge was unjust, he failed to provide sufficient evidence in mitigation of his misconduct other than his personal testimony.  While there is merit to the applicant's contention that he had indications of a mental problem, he freely chose to go AWOL and compromised the special trust and confidence placed in a Soldier.  The applicant had the duty to support and abide by the Army policies and by continuing to go AWOL, he knowingly risked a military career by engaging in continued misconduct.

5.  Based on the available evidence and the applicant's multiple infractions of discipline, administrative regularity is presumed in his discharge process and his service does not meet the standards of acceptable conduct and performance for an honorable or general discharge.  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 any evidence that would satisfy this requirement.  Therefore, he is not entitled to the relief he has requested.

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)                                         AR20080015453



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ABCMR Record of Proceedings (cont)                                         AR20080015453



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