IN THE CASE OF:	

		BOARD DATE:	  04 March 2010

		DOCKET NUMBER:  AR20090016035 


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 (UD) be upgraded to an honorable discharge. 

2.  The applicant states that ever since the day of his discharge he has lived in total disgrace.  He was very depressed upon entering the Army.  There is a book that was written about boys at the Marianna School for Boys titled, “The White House Boys” and he is one of those boys.  He was quite traumatized while there and even now he is still so traumatized by the beatings and rape that for the past 15 years he had been hospitalized in nine different psychiatric facilities.  He is on some serious medications and probably will be until the day he dies.  He also states, in effect, he would love for his son, who served in the Army, to see that he received an honorable discharge, as he knows nothing about the UD.  He further states, in effect, that he was absent without leave (AWOL) because he went to his grandfather’s funeral.  He tried to contest his court-martial with his counsel, who said just forget it.   

3.  In support of his application, the applicant provides a self-authored letter.  

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, in pay grade E-1, on 28 February 1969, with a moral eligibility waiver for his civilian record.  His enlistment was restricted to 2 years.  He did not complete advanced individual training; therefore, he retained his military occupational specialty (MOS) of 09B (trainee).  

3.  On 14 May 1969, the applicant accepted punishment under Article 15, Uniform Code of Military Justice, for being AWOL from 4 May to 8 May 1969.  The punishment included a forfeiture of $23.00 pay per month for one month and 14 days restriction and extra duty.  He did not appeal the punishment.

4.  On 1 July 1969, the applicant was convicted by a special court-martial of one specification of AWOL from 27 May to 11 June 1969.  He was sentenced to a forfeiture of $76.00 pay per month for four months and confinement at hard labor for four months.  

5.  A Mental Hygiene Consultation Service Certificate, dated 18 July 1969, shows the applicant underwent a psychiatric examination in conjunction with the Mental Hygiene Stockade Program.  The examining psychiatrist, a military medical doctor, diagnosed the applicant with passive aggressive reaction, chronic, moderate, manifested by stubbornness, inefficiency, rebelliousness, poor impulse control, low frustration tolerance, manipulation, and a lack of motivation for military duty.  He also stated that the applicant had a long history of character and behavior disorder of the immaturity type that existed prior to service.  The psychiatrist determined that in connection with standards prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), the applicant had no mental or physical defects warranting admission to, or final disposition through medical channels.  The psychiatrist cleared the applicant psychiatrically for action deemed appropriate by the command and that firm limits be set for him.

6.  On 22 July 1969, the convening authority approved the applicant’s sentence and ordered it duly executed.

7.  On 28 February 1970, the applicant's unit commander recommended he be required to appear before a board of officers convened under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), for the purpose of determining whether he should be discharged before the expiration of his term of service.  The unit commander also stated, in effect, that he was recommending the applicant be discharged with a UD because he could not adjust to any part of society and refused to respect his fellow man.  He also stated that the applicant was lacking military discipline.  

8.  On 4 March 1970, 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.  

9.  On 28 March 1970, the applicant's battalion commander recommended approval of the applicant's discharge by reason of unfitness with a UD Certificate.

10.  On an unspecified date, 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.  

11.  The applicant was discharged in pay grade E-1 on 9 April 1970, under the provisions of Army Regulation 635-212, with a character of service of under conditions other than honorable and was issued a UD Certificate.  He was credited with 4 months and 12 days of net active service and 134 days of lost time due to being AWOL and in confinement.

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

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 (Active Duty Enlisted Administrative Separations), in effect at the time, provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  Army Regulation 635-200 also provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to honorable has been noted.  However, the evidence of record shows the applicant did not complete training for assignment in a MOS and he was never promoted beyond pay grade E-1.  The evidence also shows he was punished under Article 15 and convicted by special court-martial of AWOL and sentenced to confinement.  

2.  The evidence further shows that in recommending approval of the applicant's discharge, his unit commander stated that he could not adjust to any part of society, refused to respect his fellow man, and lacked military discipline.  He was psychiatrically cleared for any action deemed necessary by his command.  

3.  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 or a general or UD.  

4.  The applicant has provided no evidence or argument to show his discharge 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.  

5.  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.

6.  In view of the foregoing, there is no basis for granting 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)                                         AR20090016035



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ABCMR Record of Proceedings (cont)                                         AR20090016035


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