IN THE CASE OF:	  

		BOARD DATE:	       4 AUGUST 2009

		DOCKET NUMBER:  AR20090004706 


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 an honorable discharge.

2.  The applicant states, in effect, that he is ashamed of the type of discharge he has and wishes to have it changed to an honorable discharge.  He also states that at the time of his discharge he suffered from mental and medical conditions which caused his improper behavior.  He suffered from major depression as a very young person and rejected authority due to extreme physical abuse from his father.  He also suffered with severe stomach pains which were probably caused by abuse stress.  He is now retired and realizes his behavior was wrong.  He was treated by many doctors in 1980's for major depression.  He was treated in 2000 at the Stanislaus County Behavioral Hospital in Modesto, California, for 4 weeks following his attempted suicide.  He has been on medication from 1980 to the present.  He still suffers from terrible stomach pains.

3.  The applicant provides no additional documentation 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 record shows he enlisted in the Regular Army in pay grade E-1 on 4 September 1958 for 3 years.  He completed basic and advanced training and was assigned military occupational specialty 111, light weapons infantryman.  He was advanced to pay grade E-2 on 4 January 1959.

3.  On 2 March 1959, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company B, 2nd Battle Group (Reserve Forces Act Training), Fort Ord, California.  The applicant was charged with absenting himself from his unit from 19 February to 1 March 1959.  He was convicted by a summary court-martial and sentenced to a reduction to pay grade E-1, a forfeiture of $55.00 per month for 1 month, and confinement at hard labor for 1 month.  He was reduced to pay grade E-1 on 6 March 1959.

4.  The applicant was again advanced to pay grade E-2 on 1 June 1959 and advanced to pay grade E-3 on 4 September 1959.  He was reduced to pay grade E-2 on 13 October 1959 for misconduct.

5.  On 2 November 1959, the applicant was convicted by a special court-martial of two specifications of absenting himself from his unit on 10 November 1959 and from 14 November 1959 to 17 November 1959.  The applicant was sentenced to a reduction to pay grade E-1, a forfeiture of $52.00 pay per month for 2 months, and confinement at hard labor for 2 months.  The sentence was adjudged on 24 November 1959 and approved on 5 December 1959.  He was reduced to pay grade E-1 on 5 December 1959.

6.  On 3 December 1959, the applicant underwent a psychiatric examination.  He was found to be free of mental defect, disease, or derangement and had the mental capacity to understand the nature and probable consequent of all his acts.  He was also found able to distinguish right from wrong and to adhere to the right.  He was found to have the mental capacity to understand the nature of any proceedings against him and to cooperate in his own defense.  The evaluating psychiatrist, an Army Medical Corps officer, found that he was not suffering from any physical or mental condition which would warrant separation from the service by reason of physical disability.  The evaluating psychiatrist stated that further efforts at rehabilitation and/or change of duties would not appear to be effective or worthwhile.
7.  On 3 December 1959, the applicant's company commander requested a board of officers be appointed to determine whether the applicant should be discharged prior to the expiration of his term of service.  The company commander stated, in effect, that the applicant had been a liability to the unit rather than an asset since his assignment on 20 April 1959.  He had committed repeated offenses, the nature of which could not be tolerated by the Army establishment without completely undermining discipline and order.  He had talked with the applicant on a number of occasions and his attitude was continually one of "wanting to get out of this Army."

8.  On an unspecified date the applicant acknowledged the recommendation that he appear before a board of officers under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) and the basis for his company commander's recommendation.  He also acknowledged that he could be issued an undesirable discharge.  He waived his right to have his case heard before a board of officers and elected not to submit a statement in his own behalf.

9.  On 10 December 1959, the applicant's battalion commander recommended approval of the request for review by a board of officers and further recommended that he be furnished an Undesirable Discharge Certificate.

10.  On 14 December 1959, the Commander, Company D, 1st Battle Group, 9th Infantry, approved the request for review by a board of officers and further recommended the applicant be furnished an Undesirable Discharge Certificate.

11.  On 4 January 1960, so much of the findings of guilty of one specification of absenting himself from his unit on 10 November 1959 were set aside with all rights and privileges of that portion restored to the applicant.

12.  On 4 January 1960, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-208 with an undesirable discharge.

13.  The applicant was discharged in pay grade E-1 on 21 January 1960 under the provisions of Army Regulation 635-208 with an undesirable discharge.  He was credited with completing 1 year, 3 months, and 8 days of net active service with 40 days of lost time due to absence without leave (AWOL) and confinement.

14.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

15.  Army Regulation 635-208, then in effect, provided in pertinent part the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals determined to possess undesirable habits and traits were discharged under this regulation.  An undesirable discharge was normally issued.

16.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policies and procedures for the separation of enlisted personnel.  Paragraph 3-7a provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally meets the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate.

17.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered; however, in view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge to either an honorable discharge or a general discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The evidence of record shows the applicant was charged and convicted by summary and special courts-martial of AWOL and sentenced to reductions in rank and confinement each time.  The evidence does not show the court-martial was the primary reason and authority for his discharge; however, it did contribute to his ultimate discharge.  His company commander stated that due to his repeated offenses he was recommending the applicant appear before a board of officers to determine if he should be discharged.  He waived his rights to have his case heard by a board of officers, acknowledged that he could receive an undesirable discharge, waived his rights, and elected not to submit a statement in his own behalf.  

3.  There is nothing in the available records and the applicant did not provide any evidence to show that he was denied due process or that his rights were violated He has provided no evidence to show that his separation was unjust and that he was suffering from mental and medical conditions at the time.  He has provided neither probative evidence nor a convincing argument in support of an upgrade of his undesirable discharge.

4.  The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons were appropriate considering all the facts of the case.

5.  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 has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting 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.



      ___________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)                                         AR20090004706



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ABCMR Record of Proceedings (cont)                                         AR20090004706



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