BOARD DATE:	  February 17, 2010

		DOCKET NUMBER:  AR20090015550 


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 that his undesirable discharge be upgraded to a general under honorable conditions or fully honorable discharge.

2.  The applicant states he was not given any chance to rehabilitate and remain in the Army.

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 9 October 1964 for a period of 3 years.  His highest grade attained was private, E-2.

3.  On 7 December 1964 and 18 January 1965, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to maintain a rifle in a clean condition and failing to go to his appointed place of duty.

4.  On 9 March 1965, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 1 March 1965 to 5 March 1965.  He was sentenced to a forfeiture of $55.00 pay, restriction to limits for 25 days, hard labor without confinement for 25 days and reduction to private, E-1.

5.  On 14 May 1965, the applicant was convicted by a special court-martial of being AWOL from 5 April 1965 to 3 May 1965.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of $55.00 pay for 6 months, and reduction to the lowest grade.

6.  On 2 July 1965, the applicant underwent a psychiatric examination.  He was diagnosed as having chronic severe passive-type aggressiveness manifested by his inability to adjust to a military environment, repeated infractions of military rules and regulations with apparent failure to profit from cadre supervision, impulsive escape-type behavior to avoid military duties (AWOLs), and symptoms of chronic anxiety.

7.  On an unknown date, the unit commander notified the applicant of the initiation of a separation action for unfitness under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness).

8.  On 25 October 1965, the applicant acknowledged the unit commander's intention to recommend his separation for unfitness under the provisions of Army Regulation 635-208 based on his frequent incidents of a discreditable nature with civil or military authorities.  He declined legal counsel, waived consideration of his case by a board of officers, and did not submit statements in his own behalf.

9.  On 25 October 1965, the unit commander recommended the applicant be discharged for unfitness under the provisions of Army Regulation 635-208.  The unit commander indicated that attempts had been made to rehabilitate the applicant.  He stated the applicant had been counseled by commanding officer and chaplain.  He was afforded every opportunity to change his attitude toward accepting the responsibility of his duties.  The unit commander also stated the applicant had been counseled repeatedly and his problems had been very carefully considered.

10.  On 15 December 1965, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-208, paragraph 3a, by reason of unfitness with issuance of an Undesirable Discharge Certificate.

11.  On 21 December 1965, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-208 for unfitness.  He had completed 8 months and 10 days of active military service with 183 days of lost time due to AWOL and confinement.

12.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

13.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual's military record was characterized by one of more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana, an established pattern for shirking, or an established pattern showing dishonorable failure to pay just debts.

14.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, provides that an honorable discharge is a separation with honor.  Issuance of an honorable discharge is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration to the member's age, length of service, and general aptitude.  Where a member has served faithfully and performed to the best of his or her ability, an honorable discharge certificate should be furnished.

15.  Army Regulation 635-200 sets forth the basic authority 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 contends he was not given any chance to rehabilitate and remain in the Army.  However, the evidence of record shows the applicant was counseled repeatedly and he was afforded every opportunity to change his attitude toward accepting the responsibility of his duties.

2.  The applicant's administrative separation under the provisions of Army Regulation 635-208 was accomplished in compliance with applicable regulations at that time.

3.  The applicant's service record shows he received nonjudicial punishment twice under Article 15, one summary court-martial conviction, and one special court-martial conviction.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general under honorable conditions or a fully honorable discharge.

4.  There is no evidence of record which indicates the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's request for an upgrade of his 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)                                         AR20090015550



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ABCMR Record of Proceedings (cont)                                         AR20090015550



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