IN THE CASE OF:	  

		BOARD DATE:	   2 February 2010

		DOCKET NUMBER:  AR20090013872 


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 a general discharge under honorable conditions.

2.  The applicant states, in effect, that at the time of his discharge he was young and influenced by the wrong crowd.  He is presently 68 years old and has no criminal record.  He retired from the textile mill with almost 40 years of service as a department head.  He has matured since being separated with an undesirable discharge and he would like his discharge changed if at all possible.

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 records show he enlisted in the Regular Army, in pay grade E-1, on 9 February 1960, for 3 years.  On the date of his enlistment, he was 18 years and 7 months of age.  He completed training and was assigned military occupational specialty 710 (Clerk).  He was advanced to pay grade E-3 on 9 January 1961.

3.  The applicant was reduced to pay grade E-2 on 1 April 1961, for misconduct.

4.  On 15 May 1961, the applicant was convicted by a special court-martial of one specification of being absent without leave (AWOL) from 5 April to 9 May 1961.  He was sentenced to a forfeiture of $15.00 pay for 6 months, a reduction to pay grade E-1, and confinement at hard labor for 6 months.  The sentence was adjudged on 18 May 1961.  On 19 May 1961, he was reduced to pay grade E-1 and placed in confinement.

5.  A neuropsychiatric examination certificate, undated, shows the applicant stated that he went AWOL because he could not stand being told everything to do and when to do it.  The applicant also stated that he did not want to return to duty and he had received 5 Article 15s for pass violations, missing bed check, AWOL, etc.  The applicant was diagnosed with an antisocial personality, chronic, moderate, manifested by disregard of social codes and norms, immaturity, inability to tolerate authority figures and complete lack of ambition for the future.  He was found to be free of mental defect sufficient to warrant separation through medical channels.  He was found to be mentally responsible, to distinguish right from wrong, and to adhere to the right.  He also had the mental capacity to understand and participate in board proceedings.  The evaluating psychiatrist found that he was undesirable for further military duty.  

6.  On 22 June 1961, the applicant's unit commander notified him of the intent to separate him under the provisions of Army Regulation 635-208 (Personnel Separations) due to unfitness.  On the same date, the applicant consulted with counsel, he acknowledged that he understood the basis for the separation recommendation, and that he understood 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.  He also acknowledged he understood that he may be deprived of his many rights and benefits as a veteran under both Federal and State law and that he may expect to encounter some prejudice in civilian life if he were issued an undesirable discharge.




7.  On 24 June 1961, the applicant's battalion commander recommended approval of the applicant’s discharge under the provisions of Army Regulation 635-208 with an undesirable discharge.  The battalion commander stated the applicant had demonstrated undesirable habits and traits of character and it was felt that further attempts at rehabilitation would be futile.  

8.  On 5 July 1961, the convening authority remitted the unexecuted portion of his sentence to confinement adjudged on 15 May 1961.

9.  On 5 July 1961, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-208 with an undesirable discharge.

10.  The applicant was discharged in pay grade E-1 on 17 July 1961 under the provisions of Army Regulation 635-208 with an undesirable discharge.  He was credited with completing 1 year, 1 month, and 22 days of net active service with 108 days of lost time due to being AWOL and in confinement.

11.  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.

12.  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 considered appropriate.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

   a.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   b.  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 a general discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant's contention that his youth impacted his ability to serve successfully is without merit.  The applicant was 18 years and 7 months of age when he enlisted in the RA.  He served from February 1960 to February 1961 without incident.  He was 19 years old when he went AWOL.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed their military obligations.  

3.  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.

4.  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.

5.  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)                                         AR20090013872



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)