IN THE CASE OF:	  

		BOARD DATE:	       12 February 2009

		DOCKET NUMBER:  AR20080018570 


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 was told his character of service would be changed to honorable a year after his discharge.

3.  The applicant provided a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 2 Oct 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 that he enlisted in the Tennessee Army National Guard (TNARNG) for a period of 3 years on 11 March 1958.  He was subsequently ordered to and entered active duty for training (ACDUTRA) on 19 July 1958.  He completed basic combat training at Fort Jackson, South Carolina, and advanced individual training at Fort Sam Houston, Texas, and was awarded military occupational specialty (MOS) 910.00 (Medical Corpsman).  He was honorably released from ACDUTRA to the control of his ARNG unit on 13 December 1958.

3.  The applicant’s records further show he enlisted in the Regular Army for a period of 3 years on 17 March 1961.  He was subsequently assigned to the 3rd Battalion, 16th Field Artillery, Fort Bragg, North Carolina, and attained the rank/grade of private first class (PFC)/E-3.  

4.  On 18 July 1962, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being absent from his appointed place of duty without proper authority on 16 July 1962.  His punishment consisted of one week of restriction. 

5.  On 8 September 1962, the applicant pled guilty at a Summary Court-Martial to one specification of, on or about 29 August 1962, behaving himself with disrespect toward his commanding officer by saying to him “You don’t have to holler at me, I am standing right here” and one specification of breaking his restriction to the limits of Fort Bragg, North Carolina.  The Court sentenced him to reduction to private (PV2)/E-2 and a forfeiture of $80.00 for one month.  The sentence was adjudged on 8 September 1962 and was approved on 9 September 1962.

6.  On 13 September 1962, the applicant's immediate commander initiated separation action against the applicant in accordance with Army Regulation (AR) 635-209 (Personnel Separations) for unsuitability.  He further remarked that the applicant was unable to conform to prescribed military standards.  He was outwardly emotional and was unable to control his actions.  At times, he was unaware of his previous actions and was abnormally burdened with relatively small problems.  The immediate commander added that the applicant constantly required much attention and sympathy from his superiors.  He further recommended a General Discharge Certificate.





7.  On 17 September 1962, the applicant acknowledged that he had been counseled and advised of the basis for the contemplated separation action and was afforded the opportunity of requesting counsel but declined.  He further waived consideration of his case by a board of officers and elected not to submit a statement on his own behalf.   

8.  The applicant also acknowledged that he understood that he could encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as a result of the issuance of an undesirable discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could also encounter substantial prejudice in civilian life.

9.  On 24 September 1962, the applicant underwent a psychiatric evaluation.  The military psychiatrist remarked that the applicant’s diagnosis was that of immaturity and chronic emotional instability reaction manifested by nervousness, temper outbursts, and occasional use of alcohol.  He added that due to his character and behavior disorder as well as his numerous personal and financial problems, the applicant was performing in an unsatisfactory manner and was an unlikely candidate for rehabilitation.

10.  On 25 September 1962, the separation authority approved the applicant’s discharge under the provisions of AR 635-209 by reason of unsuitability and directed the applicant be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 2 October 1962.  The DD Form 214 he was issued confirms he was discharged with a character of service of under honorable conditions and that he completed a total of 1 year, 11 months, and 1 day of creditable active military service.

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

12.  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.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.

13.  AR 635-200, 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 evidence of record shows that the applicant’s quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of service includes acceptance of nonjudicial punishment and a conviction by a summary court-martial.  The applicant’s administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reason for separation are appropriate considering all the facts of the case.

3.  The applicant has not submitted any substantiating evidence to show that the actions taken in his case were in error or unjust.  The Army does not have a policy that allows for an automatic upgrade of a discharge subsequent to a Soldier's discharge from the Army.  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 did not submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis to grant the applicant's request

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.



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               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)                                         AR20080018570



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ABCMR Record of Proceedings (cont)                                         AR20080018570



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