IN THE CASE OF:	  

		BOARD DATE:	  14 October 2009

		DOCKET NUMBER:  AR20090005440 


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 undesirable discharge be upgraded.

2.  The applicant states that he was discharged due to alcohol abuse.  He adds that he has since been diagnosed with post-traumatic stress disorder (PTSD) which he believes explains his self-medication with alcohol.  The applicant states that upon his discharge, he struggled with controlling his disability but managed to provide a good life for his family.  He maintains that his good life was based on 28 years of successful employment with the Richmond Public Schools.  The applicant states that he was originally approved for interment in the Amelia Veterans Cemetery, but was later denied due to his discharge.  Therefore, he would like his discharge upgraded so that he can be buried among his comrades.

3.  The applicant provides a copy of his Certificate of Appreciation, criminal history record, driver's license, and a letter from the Department of Veterans Affairs (VA).

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 record shows that, after having had prior service, he enlisted in the Regular Army and entered active duty on 12 June 1947.

3.  On 12 February 1953, the applicant underwent a neuropsychiatric examination and was diagnosed with "passive-aggressive reaction" characterized by rebellion against authority and excessive drinking.  The psychiatrist stated that the commander provided a history on the applicant that indicated he had been convicted seven times by summary court-martial and one conviction by a special court-martial.  The commander said that there were repeated episodes of the applicant being drunk in the village and remaining there after hours.  He added that disciplinary measures did not alter the applicant's behavior.  The psychiatrist offered that the applicant was rational, of normal intelligence, and showed no evidence of insanity or other mental disorder.  He said the applicant appeared resentful during the examination and felt that his after-duty behavior was his own concern.  He further stated that in the event that the applicant's performance was not deemed useful to the service, he should be separated from the military under the provisions of Army Regulation 615-368 (Enlisted Men Discharge -Unfitness - Undesirable Habits and Traits of Character).

4.  The applicant's discharge proceedings were not in the available record.  However, the Report of Proceedings by a Board of Officers contained in his record shows that a board was convened on 18 March 1953 to determine whether or not the applicant should be discharged under the provisions of Army Regulation 615-368.  The applicant appeared before the Board without counsel and was afforded full opportunity to cross examine witnesses, to present evidence on his behalf, to testify in person or submit a written statement, and to submit a brief.  After considering the evidence, the board found that the applicant's habits (nine previous convictions) rendered retention in the service undesirable.  The board recommended that the applicant be discharged from the service because of unfitness and furnished an undesirable discharge.

5.  The applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States) shows that he was discharged with a characterization of service of undesirable on 16 May 1953 under the provisions of Army Regulation 615-368.  He had completed a total of 8 years, 7 months, and 24 days of creditable service.

6.  On 24 March 1981, the applicant appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 16 February 1982, the ADRB denied the applicant's appeal citing that the board determined that he was properly discharged.

7.  The certificate of appreciation provided by the applicant shows that he was employed for 28 years with the Richmond Public Schools.  Additionally, the criminal history record indicates that there was no conviction data listed on the applicant.

8.  The letter from the VA shows that the applicant applied and was found eligible for burial at the Virginia Veterans Cemetery at Amelia.

9.  Army Regulation 615-368, in effect at the time, set forth the procedures and authority for the separation of enlisted personnel for unfitness.  Paragraph 1 of the regulation provided, in pertinent part, that individuals who have demonstrated they were totally unfit for further retention in the military service due to misconduct were subject to separation for unfitness.  The regulation provided that the individual's commander would report the facts to the next higher commander and recommend that the individual appear before a board of officers. This board of officers was convened by the commander exercising general court-martial authority jurisdiction.  The board of officers could recommend the individual be discharged for unfitness, discharged for unsuitability, or retained in the service.  This regulation further provided that when an individual was discharged for unfitness they would be issued an Undesirable Discharge Certificate.

10.  Army Regulation 635-200 (Personnel Separations) sets for the basic policy for the separation of enlisted personnel.  It 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.

11.  Army Regulation 635-200 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 he was discharged for alcohol abuse.  Since his separation processing packet was not available for review, the exact reason or reasons he was processed for a discharge due to unfitness is unknown.  However, the neuropsychiatric examination as well as the Report of Proceedings by a Board of Officers both indicate that the applicant had been convicted by courts-martial at least eight or nine times; therefore, it is more likely the applicant was processed for discharge based on patterns of misconduct.

2.  Additionally, the applicant maintains that he has now been diagnosed with PTSD and feels that this condition accounts for his indiscipline during his service in the military.  His records show the evaluating psychiatrist found that the applicant was rational, of normal intelligence, and showed no evidence of insanity or other mental disorder.  He said the applicant felt that his after-duty behavior was his own concern.  The psychiatrist did not find any medically disqualifying condition.

3.  Further, the fact that the applicant has been employed for 28 years with Richmond Public Schools and has no criminal history was considered.  However, good post-service conduct alone is not sufficient justification to warrant the relief requested.

4.  The applicant also contends that his discharge should be upgraded for the purpose of securing burial benefits.  There are no provisions in Army regulations that allow for the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  The applicant has failed to provide such evidence.

5.  In the absence of 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.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

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.



      ___________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)                                         AR20090005440



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ABCMR Record of Proceedings (cont)                                         AR20090005440



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