IN THE CASE OF:	

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090014308 


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 upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states that his dad passed away and his superiors said they would discharge him with an honorable discharge, but they did not.

3.  The applicant submits, in support of his application, a copy of his DD Form 214 (Report of Separation from Active Duty).

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.  On 22 July 1975, the applicant enlisted in the Regular Army for a period of
3 years.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On 19 August 1975, the applicant accepted nonjudicial punishment (NJP) for being disrespectful towards a superior noncommissioned officer.  His punishment included a forfeiture of $35.00 per month for one month, and restriction and extra duty for 10 days.

4.  On 23 April 1976, the applicant accepted NJP for having in his possession
3 grams, more or less, of marijuana.  His punishment included a forfeiture of $90.00 per month for 1 month.

5.  The applicant's record contains three certificates/statements that attest to his inability to perform duties due to a physical profile, not informing his chain of command about his personal problems, and mental anguish due to the death of his father.

6.  On 21 September 1976, the applicant underwent a psychiatric evaluation at the Headquarters, 25th Infantry Division, Office of Division Psychiatrist.  The examining psychiatrist diagnosed the applicant with acute situational maladjustment because of his father's recent death and significant illness of his mother as well as a host of other problems.  He was “cleared for psychiatric illness” (i.e., no psychiatric illness was found) in accordance Army Regulation 635-40 (Physical Evaluation) for any administrative action deemed appropriate by the commander.

7.  On 21 October 1976, the unit's commander recommended that the applicant be discharged for unsuitability under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The commander’s recommendation was based on the applicant’s personality disorders.

8.  On 21 October 1976, the applicant acknowledged receipt of the commander’s recommendation and proposed actions under the provisions of Army Regulation 635-200.  The applicant waived consideration of his case by a board of officers and elected to provide a statement in his own behalf.  In his statement he felt he should be given an honorable discharge.  He states he had few problems before he joined the Army; however, after his father passed away his mother was having extreme difficulties with bankruptcy and being hospitalized for a nervous condition.  He felt he did his job in the Army to the best of his ability up until the time his father passed away.  Lastly, he requested careful consideration of the command's decision because anything less than an honorable discharge would 

only add to his already complicated life and make it more difficult for him to put his life back together.

9.  On 28 October 1976, the appropriate authority approved the applicant's separation action and directed that he receive a general, under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 13 by reason of unsuitability.  On 4 November 1976, the applicant was discharged with a general, under honorable conditions discharge.  The DD Form 214 he was issued at the time confirms he completed a total of 1 year, 3 months, and 13 days of creditable active duty.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

11.  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.

12.  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 evidence of records shows the applicant was diagnosed with an acute situational maladjustment disorder.  Accordingly, his chain of command initiated 
separation action against him.  Although his commander indicated he was being separated due to a personality disorder, he had never been diagnosed with that type of disorder.  That minor error fails to show there were any 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.

2.  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.  

3.  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:

________  ________  ________  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)                                         AR20090014308



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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