IN THE CASE OF:	  

		BOARD DATE:	    18 March 2010

		DOCKET NUMBER:  AR20090014965 


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, upgrade of his undesirable discharge (UD) to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that in 1968 he was young, immature, and confused with personal problems.  He had to do something, so he took the first way out offered.  After leaving the Army he got himself straightened out.  He works with the Boy Scouts of America and the Youth Athletic Association, and he is an honest, law-abiding citizen.

3.  In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer of Discharge).

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 (RA) in pay grade E-1 on 4 January 1968, for 3 years.  On the date of his enlistment in the RA, he was 18 years 1 month, and 24 days of age.  He did not complete advanced individual training; therefore, he retained his military occupational specialty (MOS) of 09B (trainee).

3.  On 1 June 1968, the applicant was convicted by a special court-martial of three specifications of being absent without leave (AWOL) from 26 March to 15 April 1968, 20 to 23 April 1968, and 1 to 23 May 1968.  He was sentenced to a forfeiture of $63.00 pay per month for six months and confinement at hard labor for six months.  The sentence was adjudged on 11 June 1968.

4.  On 13 June 1968, the convening authority approved the applicant’s sentence and ordered it duly executed.

5.  A Mental Hygiene Consultation Service, Fort Gordon, GA form letter, undated, shows the applicant underwent a command requested evaluation on 8 July 1968 in conjunction with his contemplated separation action under Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  The examining psychiatrist, a military medical doctor, diagnosed the applicant’s personality as immature, chronic, severe, manifested by the inability to adjust to military environment.  He also stated the applicant had a sparsity of adaptive skills, impaired interpersonal relationships, anxiety and label control of emotional responses, repeated infractions of military rules and regulations, frequent drunkenness, poor impulse control with escape-type behavior (AWOLs), and impaired insight and judgment.  He further stated that the applicant had a lifelong history of adaptation problems, ineffective parental guidance, problems with adjustment to authority, marginal social adaptation, inadequate academic adaptation, poor control and mismanagement of hostility, anxiety, and dependency feelings in the past.  The psychiatrist determined that the applicant was impaired for further military duty and recommended an administrative separation.

6.  On 11 July 1968, the applicant's unit commander recommended he be discharged before the expiration of his term of service under the provisions of Army Regulation 635-212 for Unfitness.  The unit commander stated that he was recommending the applicant be discharged because of his attitude towards the service.  The applicant’s mission for the time being was to get out of the Army.  
He had been AWOL several times and was a bad influence on all other enlisted men who came in contact with him.  He had failed to respond to efforts of rehabilitation and value to the service was limited.

7.  On 11 July 1968, after consulting with counsel, the applicant acknowledged receipt of his proposed elimination from the service for unfitness.  He elected not to have his case heard before a board of officers and elected not to submit a statement in his own behalf.  He also acknowledged the effects in the event a general discharge was issued to him and further acknowledged that he may be ineligible for benefits as a veteran and could expect to encounter substantial prejudice in civilian life if a UD was issued.

8.  On 11 July 1968, the applicant's battalion commander recommended approval of the applicant's discharge by reason of unfitness with a UD Certificate.

9.  On 18 July 1968, the appropriate separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212, for reason of unfitness, and directed the issuance of a UD Certificate.

10.  The applicant was discharged in pay grade E-1 on 25 July 1968, under the provisions of Army Regulation 635-212, with a character of service of under conditions other than honorable and a UD Certificate.  He was credited with
3 months and 6 days of net active service and 107 days of lost time due to being AWOL and in confinement.

11.  The applicant's records document no acts of valor or significant achievement.

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

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel who are found to be unfit or unsuitable for further military service.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  A UD was normally considered appropriate for individuals separated by reason of unfitness.

14.  Army Regulation 635-200 governs the policies and procedures 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UD should be upgraded has been noted.  However, the evidence of record shows the applicant did not complete training for assignment in an MOS and he was never advanced beyond pay grade E-1.  The evidence also shows he was convicted by a special court-martial of three specifications for AWOL and sentenced to confinement.

2.  The applicant's contention that his youth impacted his ability to serve successfully is without merit.  The applicant was 18 years, 1 month, and 24 days of age when he enlisted in the RA.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.

3.  The evidence further shows that in recommending approval of the applicant's discharge, his unit commander stated that he was a bad influence on all other enlisted men who he came in contact with, had failed to respond to efforts of rehabilitation, and his value to the service was limited.  After undergoing a psychiatric evaluation, the evaluating psychiatrist strongly recommended administrative separation under the provisions of Army Regulation 635-212.

4.  The evidence further shows that after consulting with counsel, the applicant acknowledged the proposed separation action for unfitness.  He waived his opportunity to appear before a board of officers and elected not to submit a statement in his own behalf.  He also acknowledged the effects of the issuance of a GD or a UD.

5.  The applicant has provided no evidence or argument to show his UD should be upgraded and his military records contain no matter upon which an upgrade should be granted.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090014965



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ABCMR Record of Proceedings (cont)                                         AR20090014965



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