IN THE CASE OF:
BOARD DATE: 30 December 2008
DOCKET NUMBER: AR20080016795
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, correction of his date of discharge on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
2. The applicant states, in effect, that his date of discharge should be changed from 28 May 1964 to 5 August 1964.
3. The applicant provides a copy of his DD Form 214 and a copy of an article 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 applicants 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 applicants 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 available records show he was inducted into the Army of the United States on 6 February 1963. He completed basic combat and advanced individual training and was awarded military occupational specialty 550.00 (Supply Handler). The highest rank/grade he attained during his military service was private (PV2)/E-2.
3. On 9 April 1964, the applicant was referred to a psychiatric evaluation by his chain of command. The military psychiatrist diagnosed the applicant with emotional instability reaction/character behavior disorder which prevented him from becoming an effective Soldier.
4. On 22 April 1964, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-209, for unsuitability. The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him. The applicant waived a personal appearance, consideration, and representation by counsel before a board of officers. He was afforded the opportunity to submit statements in his own behalf, but declined to do so. The appropriate authority approved the recommendation and directed the issuance of an Honorable Discharge Certificate.
5. On 28 May 1964, the applicant was discharged under the provisions of Army Regulation 635-209 for unsuitability with an honorable discharge. He completed 1 year, 3 months and 23 days of creditable active military service.
6. Army Regulation 635-209, in effect, set forth the basic authority for separation of enlisted personnel for unsuitability. That regulation provided, in pertinent part, that commanders would separate a member when, in the commanders judgment, it was clearly established that the member would not develop sufficiently to become a satisfactory Soldier. When separation for unsuitability was approved an honorable or general discharge was normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his date of discharge is in error and should be changed to 5 August 1964 was carefully considered; however, there is insufficient evidence to support his request.
2. The applicant's military record clearly shows that he was discharged on
28 May 1964. There is no evidence in his military record nor has he submitted any evidence to support his request.
3. Therefore, in view of the foregoing, there is no basis for granting the applicants request.
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.
_______ _ _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) AR20080016795
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ABCMR Record of Proceedings (cont) AR20080016795
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