IN THE CASE OF:	

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090016715 


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 general discharge be upgraded to a fully honorable discharge.

2.  The applicant states that the issues for which he was discharged were never addressed or treated and that he had alcoholism and a rage disorder.  He goes on to state that he was held in the stockade for a month in solitary confinement with a sign over his cell indicating that he was dangerous and to keep away from him until his discharge.  He further states that because of a lack of treatment, he was incarcerated for killing a man in a drunken rage in April 1969 and was unavailable to present his case to a board. 

3.  The applicant provides no additional documents with 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 29 April 1959 for a period of 3 years.  He completed all of his training at Fort Dix, New Jersey and was transferred to Friedberg, Germany on 22 December 1959 for assignment to an infantry company as a light weapons infantryman.

3.  During the period of 29 April 1960 to 7 June 1960, he was convicted by one special and two summary courts-martial of offenses ranging from wrongfully appropriating and operating a privately owned vehicle, assaulting a noncommissioned officer (NCO), urinating on the commander’s floor, and being absent without leave (AWOL).

4.  On 7 July 1960, he was convicted by a general court-martial of conspiracy to violently assault a German civilian, of committing assault on a German civilian with intent to commit a robbery and being absent without authority.  He was sentenced to confinement at hard labor for 4 years, forfeiture of all pay and allowances, and a dishonorable discharge.

5.  He was transferred to the United States Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas to serve his confinement.  He was dishonorably discharged on 3 February 1961 at the USDB.

6.  On 14 August 1962, the applicant was granted a restoration to duty by order of the Secretary of the Army which allowed him to enlist for a period equal to the unserved portion of his initial enlistment.

7.  On 31 August 1962, he enlisted for a period of 1 year, 10 months and 23 days and was transferred to Fort Benning, Georgia on 19 September 1962.

8.  On 2 November 1962, nonjudicial punishment was imposed against the applicant for missing reveille.  His punishment consisted of a reprimand and 14 days restriction to the company area.

9.  On 23 November 1962, he was convicted by a summary court-martial of breaking restriction.  He was sentenced to hard labor without confinement for 1 month, a forfeiture of pay, and reduction to the pay grade of E-1.

10.  On 4 January 1963, the applicant’s commander initiated action to discharge the applicant under the provisions of Army Regulation 635-209 for unsuitability due to emotional instability and his unsatisfactory conduct.  He cited the applicant’s disciplinary record and stated that in his opinion, the applicant was potentially dangerous.  He went on to state that on several occasions he had gotten into altercations, which, if not stopped, could have led to serious injury or a homicide.  He also stated that the applicant had a strong uncontrollable temper and when in that state, he could not foresee the results of his actions or stop them.  He further stated that the applicant was capable of committing homicide in the heat of anger and that he (the commander) did not have the capability of thwarting such an incident.

11.  The applicant refused consultation with counsel and waived all of his rights.  He also elected not to submit a statement in his own behalf.

12.  The appropriate authority approved the recommendation for discharge on 9 January 1963 and directed that he be furnished a General Discharge Certificate.

13.  Accordingly, he was discharged under honorable conditions on 16 January 1963 under the provisions of Army Regulation 635-209 for unsuitability due to emotional instability and unsatisfactory conduct.  

14.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

15.  Information contained in the applicant’s records indicate that in 1953, the applicant was referred to an out-patient department of a children’s medical center when he was 11 years of age by school officials because of conduct disturbance.  He fought with older boys, was stubborn and untidy, and was making grades far below his mental capacity.

16.  In 1975, while incarcerated in a penal institution in Massachusetts, the applicant applied to this Board requesting that his dishonorable Discharge be expunged from his records.  His request was denied on 21 October 1975.

17.  Army Regulation 635-209, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unsuitability when it was determined that it was unlikely that an individual would develop sufficiently to participate in further military training and/or become a satisfactory Soldier.  An honorable or general discharge was authorized.  

18.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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.

19.  Army Regulation 635-200, 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 administrative separation under the provisions of Army Regulation 635-209 for unsuitability was accomplished in accordance with the applicable regulations with no violations of any of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions have been considered by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished service during such a short period of time.  His service simply does not rise to the level of a fully honorable discharge.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

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)                                         AR20090016715





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ABCMR Record of Proceedings (cont)                                         AR20090016715



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