IN THE CASE OF:	

		BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090013073 


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 to a general under honorable conditions discharge.

2.  The applicant states, in effect, that he was drafted, but with his personality type or disorder as indicated in his service medical records, he should not have been in the service.

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 was inducted into the Army of the United States on 12 December 1963.

3.  On 18 June 1964, the applicant was convicted pursuant to his plea by a special court-martial of being absent without leave (AWOL) from 20 March 1964 to 21 May 1964.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $55.00 pay per month for 6 months.

4.  On 20 January 1965, the applicant underwent a psychiatric examination.  The psychiatrist described the applicant's mental condition as "inadequate personality, chronic, severe, manifested by ineffectual and inadequate responses to emotional, physical, and intellectual stresses; impaired intellectual capacity with a general technical score of 72; inability to tolerate minimal amounts of frustration for the purposes of obtaining future rewards; immature judgment and impaired insight.  Stress:  minimal – routine military service.  Predisposition:  marked – long history of similar adjustment patterns in the past, including dropping out of high school at the age of 17 from the eighth grade because of failure in his school work.  Impairment:  marked for further duty.  Line of duty:  no, existed prior to service."  The applicant was cleared for administrative separation.

5.  His service personnel records contain a Standard Form 89 (Report of Medical History), dated 21 January 1965.  In block 27c (Inability to Assume Certain Positions), he marked "yes" with the comment, "can't stay in one place too long."  The examining physician indicated the applicant suffered from anxiety.

6.  On 26 January 1965, the applicant was convicted pursuant to his plea by a special court-martial of being AWOL from 17 August 1964 to 4 January 1965.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $55.00 pay per month for 6 months.  On 10 February 1965, the unexecuted portion of the applicant's sentence pertaining to confinement at hard labor for 6 months was remitted.

7.  On an unknown date, the unit commander notified the applicant of initiation of separation action for unfitness under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness).

8.  On 28 January 1965, the applicant acknowledged the unit commander's intention to recommend his separation for unfitness under the provisions of Army Regulation 635-208 based on his frequent incidents of a discreditable nature with civil or military authorities.  He declined legal counsel, waived consideration of his case by a board of officers, and did not submit statements in his own behalf.

9.  On 28 January 1965, the unit commander recommended the applicant be discharged prior to his expiration of term of service for unfitness under the provisions of Army Regulation 635-208.  The unit commander stated that the applicant had a record of AWOL and misconduct that could not be tolerated in the Army.  In his recommendation, the unit commander stated there were indications that the applicant would go AWOL again if not discharged.

10.  The intermediate commander also recommended that the applicant be discharged under the provisions of Army Regulation 635-208.  During counseling sessions, the applicant repeated his desire to be separated and that further misconduct would follow if he were not separated.

11.  The separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-208, paragraph 3a, by reason of unfitness with issuance of an Undesirable Discharge Certificate.

12.  On 10 February 1965, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-208 for unfitness.  He had completed 6 months of active military service with 239 days of lost time at the time of his discharge.

13.  The applicant applied to the ABCMR in November 1992 for an upgrade of his undesirable discharge to honorable.  However, the ABCMR denied the applicant's request on 25 August 1993.

14.  In September 1993, the applicant reapplied to the ABCMR to change his undesirable discharge to a medical discharge.  However, his application was administratively closed by letter based on insufficient evidence.

15.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

16.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual's military record was characterized by one of more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana, an established pattern for shirking, or an established pattern showing dishonorable failure to pay just debts.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  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.

18.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  Issuance of an honorable discharge is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration to the member's age, length of service, and general aptitude.  Where a member has served faithfully and performed to the best of his or her ability, an honorable discharge certificate should be furnished.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should not have been in the service with his personality type or disorder as indicated in his service medical records is noted.  However, he has provided no evidence other than his self-authored statement that the extenuating circumstances regarding his personality type or disorder was the reason he committed the offenses which led to his discharge.

2.  The applicant's service record shows he received two special courts-martial for being AWOL.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general under honorable conditions or a fully honorable discharge.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-208 was accomplished in compliance with applicable regulations at that time.  There is no indication of procedural errors which would tend to jeopardize his rights.

4.  The applicant has failed to show through the evidence submitted or the evidence of record that the type of discharge issued to him was in error or unjust.



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)                                         AR20090013073



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ABCMR Record of Proceedings (cont)                                         AR20090013073



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