IN THE CASE OF:	

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090014213 


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 general, under honorable conditions discharge to a fully honorable discharge.

2.  The applicant states that he was very young and immature at the time the incident occurred and he did not fully understand the importance of an honorable discharge.  He had mental health and legal problems at the time and he was merely 19 years old.  However, he is now older and he should be entitled to an honorable discharge with all the benefits it provides including burial and Post Exchange benefits.

3.  The applicant did not provide any additional documentary evidence 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 record shows that he was born on 25 September 1954 and he enlisted in the Regular Army (RA) on 22 January 1973 at 18 years and 3 months of age for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 91E (Dental Specialist).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records show that he was awarded the National Defense Service Medal.

4.  On 18 March 1974, the applicant was admitted to the hospital at Fort Stewart, GA, after having attempted suicide by injecting a dangerous amount of harmful medication.

5.  On 29 March 1974, the applicant underwent a psychiatric evaluation.  The military psychiatrist determined the applicant to be lethargic and would only respond to painful stimuli.  He was also found emotionally unstable with moderate depression and anxiety but no signs of psychosis or organicity.  He recommended his separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, by reason of character and behavior disorder.

6.  On 23 July 1974, the applicant was again admitted to the hospital at Fort Stewart for a self-inflicted gunshot wound.  He was treated for this injury that was later determined to be "Not in Line of Duty - Due to Own Misconduct." 

7.  On 1 August 1974, the applicant’s immediate commander notified the applicant that he was being recommended for separation from the Army under the provisions of Army Regulation 635-200, chapter 13 for unsuitability due to character and behavior disorder.  The immediate commander stated that the applicant had been assigned to the Dental Detachment since June 1973 and that during this period his performance and efficiency had been unsatisfactory.  His chain of command as well as a psychiatric examiner agreed that further rehabilitative efforts would have been useless.  He had been previously counseled by various members of his chain of commander for the use of drugs and two instances of attempted suicide.

8.  On 2 August 1974, the applicant acknowledged receipt of the notification of separation action memorandum and subsequently consulted with legal counsel.  
He was advised by counsel of the contemplated separation for unsuitability under the provisions of Army Regulation 635-200, chapter 13 and its effects, of the rights available to him, and the effect of any action taken by him in waiving those rights.  He further indicated that he understood that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he further understood that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and state laws.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement.

9.  The applicant’s immediate commander initiated action recommending the applicant’s separation in accordance with Army Regulation 635-200, chapter 13, for unsuitability by reason of character and behavior disorder.

10.  On 22 August 1974, the intermediate commander recommended approval of the applicant’s unsuitability discharge.

11.  On 3 September 1974, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, for unsuitability and directed that he receive a General Discharge Certificate.  Accordingly, the applicant was discharged on 6 September 1974.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time confirms he completed 1 year, 7 months, and 4 days of creditable active military service with 11 days of lost time.

12.  There is no indication in the available record which shows he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200, chapter 13, in effect at the time, set forth the policy and prescribed procedures for discharging 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, under honorable conditions or an honorable discharge was considered appropriate.
14.  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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded to an honorable discharge.

2.  The evidence of record shows the applicant was 18 years and 3 months of age when he enlisted in the Army in January 1973 and 19 years of age when the incidents occurred.  However, there is no evidence that the applicant was any less mature than other Soldier who successfully and honorably completed their service honorably without incidents. 

3.  The evidence of records show the applicant displayed a character and behavior disorder.  Accordingly, his chain of command initiated separation action against him.  The applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.

4.  The applicant’s entire record of service was considered.  However, there is no evidence in the available records and the applicant did not provide any evidence to support an upgrade of his discharge.  Even if the applicant suffered from legal and/or mental problems, there were many other avenues to address these problems had the applicant chosen to use them.  

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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.  The reason for discharge and the characterization of service were both proper and equitable.  Further, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his general, under honorable conditions discharge to a fully honorable discharge.
BOARD VOTE:

____X___  ____X___  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20090014213



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ABCMR Record of Proceedings (cont)                                         AR20090014213



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