IN THE CASE OF:	  

		BOARD DATE:	  01 July 2009

		DOCKET NUMBER:  AR20080019917 


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 a general, under honorable conditions discharge. 

2.  The applicant states, in effect, that he submitted a request to upgrade his discharge and that it was upgraded; however, his records were burned in 
St. Louis in 1973.  He further states that he made a lot of mistakes that he can't take back, but that he was young and thought he "knew it all."  He concludes by stating that he really has no excuse for his behavior.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with a separation date of 17 August 1962 and a Department of Veterans Affairs (VA) Form 21-22a (Appointment of Individual as Claimant's Representative), dated 20 November 2008, 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 was born on 13 April 1944. 

3.  The applicant's military personnel record shows that he enlisted in the Regular Army (RA) on 11 August 1961 for a 3-year period.  At the time of his enlistment he was 17 years and 4 months old.  The applicant's record also shows that his parents consented to his enlistment in the U.S. Army for a 3-year period on
8 August 1961.

4.  The applicant completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 642.10 (Heavy Vehicle Driver).

5.  The applicant was assigned to the 556th Transportation Company at Fort Lewis on 1 December 1961 as a heavy vehicle driver.

6.  The applicant was convicted by two special courts-martial and one summary court-martial.  The first special court-martial conviction, on 8 February 1962, was for being absent without leave (AWOL) from on or about 12 January 1962 to on or about 18 January 1962.  He was sentenced to confinement at hard labor for 30 days and reduced to the rank/grade of private (PV1)/E-1.  The second special court-martial conviction, on 1 March 1962, was for failure to go at the time prescribed to his appointed place of duty on 26 February 1962.  He was sentenced to confinement at hard labor for 30 days and forfeiture of $50.00 pay per month for 1 month.  The summary-court-martial conviction was for AWOL from on or about 29 March 1962 to on or about 17 May 1962.  He was sentenced to confinement at hard labor for 6 months and to forfeit $55.00 pay per month for 6 months. 

7.  On 17 June 1969, an Army psychiatrist evaluated the applicant and found no psychiatric disease or any evidence of psychosis or neurotic thinking disorder.  He found the applicant had average intelligence and that the applicant's judgment was extremely poor, though intact.  The psychiatrist did diagnose passive-aggressive reaction with difficulties in interpersonal relationships, impulsive behaviors, passive obstructionism, and that he was immature with poor judgment.  He concluded his evaluation by saying the applicant would never adequately adjust to the service and recommended that the applicant be separated from the service as expeditiously as possible under the provisions of Army Regulation 635-209 (Personnel Separations – Discharge - Unsuitability) for unsuitability.
8.  On 9 July 1962, the applicant's unit commander recommended his separation under the provisions of Army Regulation 635-208 for unfitness.  He requested that further efforts at counseling and rehabilitation be waived stating the applicant was surly, unreliable and unstable, and the cause of friction within the unit.  The unit commander further stated that the applicant was completely hostile to, and incompatible with, military service and the discipline of soldiering.  He recommended an undesirable discharge.

9.  On 9 July 1962, the applicant consulted with counsel and he was advised of the administrative separation action being taken against him.  He was advised of his rights to representation by counsel and he waived this right.  He was counseled and waived his right to have his case considered by a board of officers and to appear before such board of officers.  He elected not to submit statements in his own behalf.

10.  On 25 July 1962, the applicant's intermediate commander recommended separation from the service with an undesirable discharge.  

11.  On 9 August 1962, the general court-martial convening authority approved the applicant's discharge and directed that an Undesirable Discharge Certificate be issued.  In his decision, he remitted the applicant's sentence of confinement at hard labor from the applicant's summary court-martial conviction.  

12.  On 17 August 1962, the applicant was discharged accordingly.  The applicant's DD Form 214 confirms he was discharged with an undesirable discharge.  This form further confirms that he completed 6 months and 19 days of active federal service with 171 days of time lost due to AWOL and confinement.  

13.  On 28 October 1965, the Army Discharge Review Board (ADRB), having determining that the applicant was properly discharged, denied the applicant's appeal to upgrade his discharge. 

14.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness (misconduct).  Paragraph 1c(1) of the regulation provided, in pertinent part, for the separation of personnel 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.

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

16.  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.  The 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's contention that his personnel records were burned in the 1973 National Personnel Records Center fire in St. Louis is not true.  His records were not burned and were made available for the Board's review.

2.  The applicant's contention that he was young at the time he enlisted and that he thought he "knew it all" was taken into consideration.  The psychiatrist found during his evaluation in 1962, when the applicant was 18 years old, that in fact the applicant was immature, had impulsive behaviors, and exhibited poor judgment.  However, the psychiatrist did not find any medically disqualifying condition.  As such, while the applicant was young, his youth did not cause his misconduct.  

3.  The applicant authenticated that he understood the reason for separation and waived his right to have his case heard by a separation board of officers and to personally appear before said board.  He further waived representation by an 
appointed counsel and he stated he would not submit a statement in his own behalf

4.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5.  After a review of the applicant’s record of service, it is evident that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general, under honorable conditions discharge.

6.  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 that requirement.

7.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20080019917



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ABCMR Record of Proceedings (cont)                                         AR20080019917



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