IN THE CASE OF:	

		BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090014049 


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 an upgrade of his under honorable conditions discharge to fully honorable.

2.  The applicant states, in effect, that he was young, and very healthy, but small. He also states that he wishes for the truth to be known and that those who lied be held accountable for their actions.  He has felt cheated over the years and believes the lies should come out.  His medical records show that "he fell about two weeks behind his troops."  He states that he injured his right leg during training and he had a bad knee.  He also had a bad captain who made it impossible for him to become a good Soldier.  He needs his discharge upgraded because he has a service-connected disability with a zero rating. 

3.  The applicant provides a copy of his clinical records, dated 22 and 23 July 1974; a copy of a summary of his right leg and knee disability claim, dated 6 May 2004; copies of a notarized statements, dated 17 November 2005 and 
8 February 2008, from two friends; a copy of a newspaper extract; a copy of his Enlisted Personnel Data Sheet, dated 1 November 1961; a copy of his DA Form 24 (Service Records); copies of various Department of Veterans Affairs (VA) medical forms, progress notes, and statements in support of a claim; dental records; health records; other medical documents; and an undated self-authored statement. 




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 records show that he enlisted in the Regular Army for a period of 3 years on 24 January 1961.  He completed training and was awarded military occupational specialty (MOS) 640.00 (Light Vehicle Driver).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant’s records further show he served in Germany from on or about 29 June to 24 December 1961.  He was assigned to Headquarters and Service Battery, 3rd Gun Battalion, 82nd Artillery.  

4.  The applicant's records contain several sworn statements by various members of his chain of command as follows:

	a.  In a statement dated 3 November 1961, the applicant's first sergeant stated that the applicant could not do any job unless he was constantly supervised.  He presented a slovenly appearance and no matter how many times he was told to shape up, it did not help.  He was immature, unreliable, and did not have the traits of a good Soldier.  It was in the best interest of the Army if he were to be discharged.

	b.  In an undated statement, the applicant's immediate commander stated the applicant's appearance and attitude towards the Army were very poor.  He had to be looked after consistently and had to be told every day to clean and dust his sleeping quarters as they were always unsatisfactory.  The immediate commander stated that it would be good for the service if he were discharged. 

	c.  In a statement dated 18 November 1961, a sergeant first class stated that he had known the applicant for 4 months and that during this time he showed very little desire of being a good Soldier.  His appearance and attitude towards the Army were poor.  The applicant had to be looked after consistently and he had to be told everyday to clean and dust his sleeping quarters as they were always unsatisfactory.  He stated that it would be in the best interest of the Army to separate the applicant.

	d.  In a statement dated 18 November 1961, a specialist four indicated he observed the applicant at work as he was assigned to work in the arms room on and off since June 1961.  His (the applicant’s) inability to adjust to simple situations that arose everyday and his unwillingness to learn gave him the impression the applicant did not wish to stay in the Army.  The specialist also stated he believed the applicant was too immature to stay in the service and that on many occasions the applicant told him that he (the applicant) wanted out of the Army. 

5.  On 3 November 1961, the applicant's immediate commander initiated separation action against the applicant in accordance with Army Regulation (AR) 635-209 (Personnel Separations) for unsuitability.  

6.  On 11 November 1961, the applicant acknowledged that he had been counseled and advised of the basis for the contemplated separation action and he was afforded the opportunity to request counsel but declined.  He further waived consideration of his case by a board of officers and elected not to submit a statement on his own behalf.   

7.  On 18 November 1961, the applicant's immediate commander initiated separation actions against the applicant under the provisions of AR 635-209 by reason of unsuitability.  The immediate commander stated that the applicant was unfit for military service.  He was very immature and unreliable.  He did not possess the physical and mental facilities required of a Soldier.  It was therefore beyond his capability to ever develop or improve himself to attain an acceptable standard of performance.  The immediate commander also indicated that the applicant's conduct and efficiency ratings were unsatisfactory and further recommended a general discharge.  

8.  On 18 November 1961, having determined that the applicant was unsuitable for further military service approved the applicant’s discharge under the provisions of AR 635-209 by reason of unsuitability and directed the applicant be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 3 January 1962.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 11 months and 10 days of creditable active military service.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
10.  The applicant submitted copies of various clinical records, progress notes, and statements in support of a VA claim.  He also submitted dental records, health records, and other medical documents, statements, and an undated self-authored statement as follows:

	a.  In his self-authored statement, he describes a knee injury that occurred during basic training.  He indicates that this led to a delay in him graduating and ultimately missing the ship date to Europe.  He states that when he arrived in Germany, his knee popped again and he was faced with an unsympathetic captain who wanted him out of the Army.  He concludes that he never received any nonjudicial punishment or reprimand and that he was a good Soldier.  He ultimately underwent knee surgery in 1974 and this led to other medical conditions related to his back.

	b.  His clinical records show he underwent right knee surgery in July 1974 and that he had mild early degenerative joint changes of the femoral condyle. 

	c.  A statement, dated 17 November 2005, from a friend who has known the applicant throughout his life indicates that he was present when the applicant's knee popped in August 1963 after his discharge from the Army.  This friend also chronicles the various events and/or dealing with the VA.

	d.  A second statement, dated 8 February 2007, from a friend describes the applicant's problems with his knee. 

	e.  A copy of his DA Form 24 shows the entry "Brig," which the applicant mistakenly understood to mean "jail" when in fact it means Brigade (He was assigned to 3rd Training Brigade, Fort Ord, CA).

	f.  Copies of medical records, dated on miscellaneous dates in 1961 that show routine sick call for a laceration to his hand.  

11.  AR 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 and transient personality disorders due to acute or special stress, apathy, defective attitude, and 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.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.

12.  AR 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  .

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The evidence of record shows the applicant’s quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of service includes several statements from various members of his chain of command to include his immediate command that state the applicant lacked maturity, that he had no desire to remain in the Army, and that he needed constant supervision.  Accordingly, his immediate commander initiated separation action against him.  The applicant’s administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reason for separation are appropriate considering all the facts of the case.

3.  The applicant describes his knee injury and subsequent treatments and/or surgery but does not provide any evidence that shows he had a medical condition at the time of separation that required separation processing through medical channels. 

4.  Additionally, he did not provide any evidence that shows any malicious actions by his chain of command.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis to grant 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)                                         AR20090014049



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ABCMR Record of Proceedings (cont)                                         AR20090014049



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