DOCKET NUMBER:  AR20090003469 


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 general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he was young and married and his mother was sick at the time of his discharge.  He states he had a lot on his mind and he made a mistake.  He states he should have received punishment under Article 15, Uniform Code of Military Justice (UCMJ), instead of a discharge.  He states he has had no trouble since his discharge.

3.  The applicant provides an unreadable copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 12 April 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 military personnel records show he was inducted on 3 November 1960.  The applicant was 18 years of age.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 111.00 (Light Weapons Infantryman).  A DD Form 93 (Record of Emergency Data) shows the applicant was single.

3.  On 7 April 1961, the applicant was assigned to Headquarters and Headquarters Company, 3rd Armored Division, in Germany.

4.  On 26 July 1961, the applicant was discharged to immediately enlist in the Regular Army.  He had completed 8 months and 25 days of active service that was characterized as honorable.  On 27 July 1961, the applicant enlisted in the Regular Army for a period of 6 years.  He was 19 years of age at the time of his enlistment.

5.  On 12 January 1962, the applicant was assigned to Company C, 2nd Armored Rifle Battalion, 48th Infantry Division, in Germany.  While assigned to this unit he received ratings of unsatisfactory in both conduct and efficiency.

6.  On 14 February 1962, court-martial charges were preferred against the applicant for being AWOL during the period 9 February 1962 to 11 February 1962.  The DD Form 458 (Charge Sheet) shows the applicant elected to refuse punishment under Article 15, UCMJ, as to the period of AWOL he was charged with.

7.  On 15 February 1962, the applicant pleaded guilty and was found guilty by a summary court-martial of being AWOL during the period 9 February 1962 to 11 February 1962.  His sentence consisted of reduction to private/pay grade E-1, forfeiture of $25.00 for 1 month, and to perform hard labor without confinement for 1 month.  On 16 February 1962, the convening authority approved the sentence.

8.  On 15 March 1962, the applicant was given a psychiatric examination by a captain of the Medical Corps.  The examiner diagnosed the applicant with emotional instability reaction, chronic, moderate.  The examiner stated the applicant was oriented to person, place, and time; was not delusional in his thinking; and hallucinatory experiences were denied.  The examiner stated the applicant was estimated to be of low-average to average intelligence, but his fund of knowledge was below this level.  The examiner stated the applicant's memory for both recent and remote events was adequate and he expressed the attitude that he no longer can continue in the service.  The examiner found that the applicant's motivation for further military service was hampered by emotional instability.  The examiner stated the applicant related that he will continue to commit offenses if necessary to secure a discharge from service.  The examiner concluded that because of the applicant's attitude and basic emotional instability, the only recourse appeared to be to separate the applicant from the service.

9.  On 23 March 1962, the applicant signed an affidavit wherein he acknowledged that he had been counseled and advised of the action being recommended against him.  He waived his right to have his case heard by a Board of Officers and a personal appearance before the Board of Officers.  The applicant also waived his right to counsel and declined to submit statements in his own behalf.

10.  On 23 March 1962, the applicant's commander recommended that he be eliminated from the service under the provisions of Army Regulation 635-208 (Personnel Separations, Discharge, Unfitness) with an undesirable discharge.  The commander stated that since the applicant's court-martial he had failed to report for hard labor on two occasions, missed bed check, and was not present for reveille on 26 February 1962.  The commander stated no punishment was imposed on the applicant for these offenses as an Article 15 would have been fruitless and the offenses did not warrant a court-martial.  The commander stated that all attempts for rehabilitation of the applicant had been to no avail and the applicant was unfit for further military service.

11.  Statements submitted with the commander's recommendation from the applicant's executive officer, platoon leader, first sergeant, and platoon sergeant all agree that the applicant's attitude, cooperation, appearance and performance of duty had been very poor; that the applicant did not respond to counseling; and recommended the applicant be discharged from the service with an undesirable discharge.

12.  On 26 March 1962, the appropriate authority approved the recommendation for an undesirable discharge and directed the applicant be reduced to the lowest enlisted grade and that he be issued an Undesirable Discharge Certificate.

13.  On 12 April 1962, the applicant was discharged from the service due to his involvement in frequent incidents of a discreditable nature with civil or military authorities under the provisions of Army Regulation 635-208 and issued an Undesirable Discharge Certificate.  The applicant had served 8 months and 14 days of active service that was characterized as under other than honorable conditions.  He had 2 days of time lost.

14.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 6 August 1981, the ADRB reviewed and granted an upgrade of the applicant's discharge to a general discharge under honorable conditions.

15.  Army Regulations 635-200 (Personnel Separations), in effect at the time, provided that an honorable discharge would be furnished when the individual had character ratings of at least "good," had efficiency ratings of at least "fair," had not been convicted by a general court-martial, and had not been convicted more than once by a special court-martial.  The regulation also provides that an individual may, where otherwise ineligible, receive an honorable discharge if he has, during his current enlistment, period of obligated service, or any extensions thereof, received a personal decoration, or is separated as a result of a disability incurred in line of duty.

16.  Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included frequent incidents of a discreditable nature with military or civilian authorities, sexual perversion, drug abuse, use of marijuana and an established pattern of dishonorable failure to pay just debts.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was young and married at the time and going through a divorce.  He also contends his mother was sick.  While the applicant was 18 years of age at the time of his induction, he was 19 years of age at the time of his AWOL and subsequent court-martial.  He was 19 years of age at the time of his enlistment for 6  years in the Regular Army.  The applicant's DD Form 93 shows he was single at the time of his induction and there is no evidence of his marriage in his official military personnel file (OMPF).  There is no evidence of the applicant's mother's illness in his OMPF.  Therefore, the applicant's age, marital status, or his mother's illness were not considered as mitigating factors in the determination of this case.

2.  The applicant contends he should have received punishment under Article 15, UCMJ instead of being discharged.  However, he had previously refused punishment under Article 15 for a 2-day period of AWOL.  The applicant's commander did not feel the offenses warranted a court-martial and, based on the applicant's history of refusing punishment under Article 15, to attempt to impose punishment under Article 15, UCMJ would have been fruitless.  Therefore, his contention is not supported by the evidence.

3.  There is no evidence that the applicant's separation was not in compliance with the applicable regulation in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  A review of the applicant's record of service, which included a conviction by summary court-martial and 2 days of time lost, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  While assigned to the 2nd Armored Rifle Battalion, 48th Infantry Division, he received ratings of unsatisfactory in both conduct and efficiency.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge from general under honorable conditions to an honorable 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.

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)                                         AR20090003469



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ABCMR Record of Proceedings (cont)                                         AR20090003469



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