IN THE CASE OF:	  

		BOARD DATE:	        14 MAY 2009

		DOCKET NUMBER:  AR20090001856 


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 that his discharge under honorable conditions (general) be upgraded to a fully honorable discharge.

2.  The applicant states that he was told by high ranking military officers that his general discharge would automatically be changed to fully honorable after 6 months; however, he never received a copy.  He states that he got a high-level clearance working for General Electric Defense Security Police from 1969 to 1995.

3.  The applicant provides a photograph of two individuals whom he identifies as himself and his son, a copy of a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), a letter from his wife dated 17 February 2009 attesting to his contention that he was told that his discharge would be upgraded 6 months after his discharge, a copy of an Honorable Discharge Certificate dated 3 January 1968, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of a letter addressed to him from the City Assessor dated 10 December 2008, and a copy of a VA Form 26-8320 (Veterans Administration Certificate of Eligibility) 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.  On 23 October 1967, the applicant enlisted in the United States Army Reserve (USAR) under the Delayed Entry Program in Boston, Massachusetts, for 6 years in the pay grade of E-1.

3.  After 2 months and 10 days of service as a member of the USAR, the applicant was honorably discharged on 3 January 1968 for the purpose of immediate enlistment in the Regular Army (RA).

4.  He enlisted in the RA on 4 January 1968 at age 20 and successfully completed his basic combat training.

5.  A review of the applicant's records shows that while he was in the Army his conduct and efficiency ratings were excellent from 15 January 1968 through 11 March 1968.

6.  The applicant was in advanced individual training on 23 April 1968 when, at the request of his commanding officer, he was evaluated at the Mental Hygiene Consultation Service for the purpose of obtaining a security clearance.  The attending psychiatrist's findings were "(3215) Personality, immature, chronic, severe, manifested by hyper-religiosity, over-dependence on wife, excessive inhibition of normal aggressive feelings, and unreliable judgment.  Stress:  undetermined.  Predisposition:  Severe.  Impairment for further military duty:  None.  LD [line of duty]:  No, EPTS [existed prior to service]."  The attending psychiatrist strongly recommended separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability due to inaptitude.  He also recommended denial of the security clearance as a result of the evaluation.

7.  A DA Form 8-275-2 (Clinic Record Cover Sheet) that was completed by the applicant's attending psychiatrist shows the nature of his disposition as "disability EPTS not aggravated by service" and a diagnosis of "personality, immature, chronic, severe."

8.  On 1 May 1968, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-212 for unsuitability due to character and behavior disorders.  He acknowledged receipt of the notification on 2 May 1968 and, after consulting with counsel, he opted not to submit a statement in his own behalf.

9.  The appropriate authority approved the recommendation for discharge on 6 May 1968 and directed the issuance of a general discharge.  Accordingly, on 22 May 1968 the applicant was discharged under the provisions of Army Regulation 635-212 for unsuitability due to inaptitude.  He had completed 4 months and 19 days of total active service and he was furnished a General Discharge Certificate.

10.  A review of the applicant's records shows that he had no nonjudicial punishments (NJP) or court-martial convictions while he was in the Army.

11.  A further review of the available records does not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unsuitability by reason of inaptitude when it was determined that it was unlikely that an individual would develop sufficiently to participate in further military training and/or become a satisfactory Soldier.  An honorable or general discharge was authorized.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-5, lists general considerations when characterizing separation.  It provides, in pertinent part, that characterization at separation will be based upon the quality of the Soldier's service.  The quality of service will be determined according to standards of acceptable personal conduct and performance of duty for military personnel.  These standards are found in the Uniform Code of Military Justice, directives and regulations issued by the Army, and the time-honored customs and traditions of military service.  The quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline.  Characterization may be based on conduct in the civilian community.  The reasons for separation, including the specific circumstances that form the basis for the separation, will be considered on the issue of characterization.  As a general matter, characterization will be based upon a pattern of behavior other than an isolated incident.  There are circumstances, however, in which the conduct or performance of duty reflected by a single incident provides the basis for characterization.  Due consideration will be given to the Soldier's age, length of service, grade, aptitude, physical and mental conditions, and the standards of acceptable conduct and performance of duty.

14.  Paragraph 3-7 of Army Regulation 635-200 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.

15.  Paragraph 3-7 of Army Regulation 635-200 also 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to a fully honorable discharge based on his being told that it would automatically be upgraded 6 months after his separation.

2.  His contentions have been noted.  The documents that he submitted in support of his application have also been noted.  However, there is no evidence in his official records that shows he was ever told that his discharge would be automatically upgraded to fully honorable 6 months after his separation.

3.  However, the applicant's records do show that he was notified that he was being recommended for discharge for unsuitability due to character and behavior disorders when, in fact, he was discharged for unsuitability due to inaptitude.  He was furnished a general discharge even though he had no records of NJP or court-martial convictions while he was in the Army.

4.  The applicant's official records do not include any records of counseling as a result of acts of indiscipline and, in accordance with the applicable regulation, due consideration should be given to his age, length of service, grade, aptitude, physical and mental conditions, and the standards of acceptable conduct and performance of duty.

5.  The available records show that the applicant underwent a mental status evaluation 3 months after he enlisted in the RA for the purpose of obtaining a security clearance.  Based on the result of his evaluation, he was denied the security clearance.  According to the attending psychiatrist, he had a disability that existed prior to service.

6.  The applicant was discharged based on the findings and recommendations made by the psychiatrist after his mental status evaluation was completed, which was appropriate.  However, based on the documentation contained in his official record, he should not have been furnished a general discharge as his overall record of service, although not lengthy, did not warrant the issuance of a general discharge.

7.  In view of the foregoing, it would now be appropriate to correct the applicant's records as recommended below.

BOARD VOTE:

___X_____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was discharged from the RA effective 22 May 1968 with an honorable characterization of service.



      _________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)                                         AR20090001856



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ABCMR Record of Proceedings (cont)                                         AR20090001856



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