IN THE CASE OF:	

		BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090012302 


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 the reason of "unsuitability, character and behavior disorder" listed on his 7 May 1973 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be removed.

2.  The applicant states that he had a personal problem with his sergeant's best friend which led to his early release and the comments on his DD Form 214.  He explains that while stationed in Fort Greely, Alaska, he developed a friendship with a young girl who was the daughter of a sergeant stationed on the base.  The applicant offers that this friendship was the root cause of his early separation.  The applicant maintains that the reference to his character and behavior disorder precludes colleges and technical schools from offering him "life experience" credit for his educational and training accomplishments listed on his separation document.  He adds that listing his separation program number (SPN) 264 instead of spelling out the reason for separation should be sufficient.

3.  The applicant provides a copy of his DD Form 214 and three character witness statements.

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 he enlisted in the Regular Army and entered active duty on 10 January 1972.

3.  On 19 September 1972, nonjudicial punishment (NJP) was imposed against the applicant for failing to go to his prescribed place of duty on two separate occasions.  His punishment consisted of reduction to the rank/grade of private/
E-2, forfeiture of $76.00 pay per month for 1 month, and restriction and extra duty for 14 days.

4.  On 25 October 1972, NJP was imposed against the applicant for being absent without authority from his unit from 0730 hours on 24 October 1972 to 1145 hours on 24 October 1972.  His punishment consisted of forfeiture of $76.00 pay per month for 1 month and restriction and extra duty for 14 days.

5.  On 10 April 1973, NJP was imposed against the applicant for being absent without authority from 0730 hours on 9 April 1973 to 2000 hours on 9 April 1973. 
His punishment consisted of reduction to the rank/grade of private/E-1.

6.  On 17 April 1973, the company commander recommended that the applicant be discharged under the provisions of chapter 13, paragraphs 5b(2) and 5b(3), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of unsuitability.  The commander stated that the applicant was unable to adjust to Army life, to tolerate stress, and to work effectively under authority.  He stated that the applicant was repeatedly absent without leave and/or in the custody of civil authorities for drug infractions.  The commander also stated that the applicant acknowledged that his attitude was unlikely to change and, therefore, his attitude rendered him ineffective and unsuitable for Army life.

7.  On 23 April 1973, after being advised of the basis for the contemplated separation, its effects, and the rights available to him, the applicant waived his rights to consideration of his case by a board of officers, to a personal appearance before a board of officers, and to counsel.  He elected to submit a statement in his own behalf in which he requested that he be separated in Alaska due to pending criminal proceedings against him in the State of Alaska.

8.  On 2 May 1973, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200 and directed that a General Discharge Certificate be issued.

9.  The applicant's DD Form 214 shows he was discharged on 7 May 1973 under the provisions of chapter 13, Army Regulation 635-200, and issued a General Discharge Certificate.  Item 11c lists SPN 264 and the reason as "unsuitability, character and behavior disorder."  The applicant had completed a total of 1 year, 3 months, and 28 days of total active service.

10.  The three character statements provided attested to the applicant's honesty and trustworthiness.  One author wrote that his business dealings with the applicant revealed a person of superb competence and dedication to get the job done regardless of personal needs.  The reverend of the applicant's church wrote that the applicant had continued to help with the important and necessary projects of keeping an old church and a new addition functional.  He said that the applicant was a man of faith and generous to his friends.  The medical doctor said that he has known the applicant for over 10 years and he considered himself very lucky to count the applicant amongst his close friends.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  In pertinent part, it provided for the separation of individuals for unsuitability with character and behavior disorders and disorders of intelligence, when such disorders were chronic and recalcitrant to attempts at rehabilitation and interfered with the serviceman's ability to adequately perform his duties as determined by medical authority.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

12.  Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214.  The regulation stated that the DD Form 214 was a summary of a Soldier's most recent period of continuous active duty.  It provided a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The regulation stated, in pertinent part, that if the reason for discharge was "unsuitability" it would not be stated in words in item 11c of the DD Form 214.  However, the appropriate regulation, authority, and SPN would be entered.

13.  Additionally, appendix I of Army Regulation 635-5 listed the reason for SPN 264 as unsuitability, character and behavior disorder.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was discharged from the service under the provisions of chapter 13, Army Regulation 635-200, for unsuitability, character and behavior disorder.  Additionally, SPN 264 listed in item 11c coincides with the reason for discharge.

2.  As stated in the regulation, if the reason for discharge is for unsuitability it will not be stated in words in item 11c of the DD Form 214.  Therefore, in the interest of justice, it is appropriate to remove the reason for discharge from the applicant's DD Form 214.

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 issuing a new 7 May 1973 DD Form 214 in which the remarks of "unsuitability, character and behavior disorder" are removed from item 11c.




      ___________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)                                         AR20090012302



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ABCMR Record of Proceedings (cont)                                         AR20090012302



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