BOARD DATE:	  10 November 2009

		DOCKET NUMBER:  AR20090009883 


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 be upgraded to honorable.

2.  The applicant states that he is now 67 years old and will regret this failure until his last days.  He contends that his son has been in the Army for 10 years and has been deployed to Afghanistan and Iraq.  He does not want his son to be ashamed of him.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 enlisted in the Regular Army on 26 September 1958 for a period of 3 years.  He trained as a construction machine operator.

3.  On 21 July 1959, the applicant was convicted by a summary court-martial in accordance with his pleas of sleeping on post while serving as a sentinel.  He was sentenced to be confined at hard labor for 30 days, to forfeit $50.00 pay per month for 1 month, and to be reduced to pay grade E-1.  On 22 July 1959, the convening authority approved the sentence but suspended the confinement.

4.  On 13 May 1960, the applicant was convicted by a summary court-martial in accordance with his pleas of disobeying two lawful orders and breaking restriction.  He was sentenced to be confined at hard labor for 1 month, to forfeit $50.00 pay per month for 1 month, and to be reduced to pay grade E-1.  On 13 May 1960, the convening authority approved the sentence but mitigated the confinement to restriction.

5.  On 15 July 1960, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) on 10 July 1960 and having improper civilian attire.  His punishment consisted of restriction.

6.  On 27 July 1960, the applicant was convicted by a summary court-martial in accordance with his pleas of breaking restriction.  He was sentenced to be confined at hard labor for 30 days, to forfeit $55.00 pay per month for 1 month, and to be reduced to pay grade E-1.  On 27 July 1960, the convening authority approved the sentence.

7.  On 11 August 1960, the applicant received a psychiatric evaluation.  The psychiatrist found that the applicant was mentally responsible for his acts and was able to participate in board proceedings.  In the recommendation section of the evaluation the psychiatrist stated, "I feel that this patient has the ability and desire to straighten out and be a good Soldier.  He wants to finish his tour of duty and continue learning about handling heavy equipment.  He feels that he can control his drinking and abide by the rules and regulations set down."

8.  On 18 August 1960, discharge proceedings under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability) for unsuitability were initiated.  The reason cited by the commander was the applicant had been AWOL or had broken restriction three times within the last 3 months and that he was a very arrogant, hot-tempered young lad who seemed unable to adjust himself to military life.

9.  The applicant was advised of the basis for the recommended administrative elimination action.  He was afforded the opportunity to consult with counsel and declined.  He waived his rights to have his case heard by a board of officers.  He elected not to submit a statement in his own behalf.

10.  On 1 September 1960, the separation authority determined that the applicant should be eliminated from the service under the provisions of Army Regulation 635-209 for apathy and directed the applicant receive a general discharge.

11.  The applicant's DD Form 214 shows he was discharged on 19 September 1960 with a general discharge under the provisions of Army Regulation 635-209 for unsuitability with the separation program number  (SPN) 264 for unsuitability due character and behavior disorders.  He had served 1 year, 10 months, and 8 days of active creditable service with 47 days lost due to confinement.

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

13.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence, transient personality disorders due to acute or special stress, apathy, defective attitude, inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist if one was available.  A general or honorable discharge was considered appropriate.

14.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  Appendix II (Revised Enlisted Separation Program Numbers and Definitions) of Army Regulation 635-5 (Personnel Separations - Administrative Separation Procedures and Forms) shows that SPN 46A is for unsuitability due to apathy, defective attitudes, and inability to expend effort constructively.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record of service includes one nonjudicial punishment, three summary court-martial convictions, and 47 days of lost time.  As a result, his record of service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

3.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  The evidence of record shows the applicant was discharged for unsuitability due to apathy; however, his DD Form 214 incorrectly shows SPN 264 (unsuitability due to character and behavior disorders).  Therefore, his SPN should be corrected to show 46A (unsuitability due to apathy, defective attitudes, and inability to expend effort constructively) in item 11c (Reason and Authority).

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entry "264" from item 11c of his DD Form 214; and

	b.  adding the entry "46A" to item 11c of his DD Form 214.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his general discharge to honorable.



      ___________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)                                         AR20090009883



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ABCMR Record of Proceedings (cont)                                         AR20090009883



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