IN THE CASE OF:	

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090016878 


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, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states he remembers being told if he stayed out of trouble for several years, he could appeal for an upgrade of his discharge.  He claims he has stayed out of trouble and has no more than a traffic ticket since his discharge. 

3.  The applicant provides two self-authored letters supporting his request.  

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 record shows he was inducted into the Army and entered active duty on 14 March 1967.  His record documents no acts of valor or significant achievement.  

3.  While the applicant was still in training, his unit commander recommended his separation under the provisions of Army Regulation 635-212, by reason of unsuitability.  The unit commander cited the applicant's failure to meet the minimum military physical requirements after 7 weeks of remedial physical training as the basis for taking the action. 

4.  On 16 May 1967, the applicant underwent a psychiatric evaluation.  The examining psychiatrist diagnosis was no neuropsychiatric disease.  He further found the applicant responsible for his own behavior and confirmed the applicant knew the difference between right and wrong and could adhere to the right.  He also indicated the applicant could understand and participate in any proceedings requiring his cooperation, and that he suffered from no mental disease or derangement that would qualify him for separation processing through medical channels.  He finally psychiatrically cleared the applicant for separation under the appropriate administrative regulation.  The psychiatric evaluation contained no character and behavior disorder diagnosis.  

5.  On 24 May 1967, the applicant consulted with legal counsel and was advised of the basis of the contemplated separation action, its effects and the rights available to him.  After receiving legal counsel, the applicant completed an election of rights in which he elected to waive consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also elected not to submit a statement in his own behalf.  In this statement, he also acknowledged his understanding that he could encounter substantial prejudice in civilian life as a result of receiving a GD.  

6.  On 25 May 1967, the separation authority approved the separation action and directed that the applicant be discharged for unsuitability under the provisions of Army Regulation 635-212 and that he be furnished a GD.  On 31 May 1967, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces Report of Transfer or Discharge) he was issued at the time shows he was separated under the provisions of Army Regulation 635-212 and assigns a separation program number (SPN) of 264 (character and behavior disorder).  It further shows at the time of his discharge the applicant was still in a training status, he held the rank of private/E-1, and had completed 2 months and 17 days of active military service.

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15 year statute of limitations.  

8.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 12 provided for separating members for unsuitability due to inaptitude, character and behavior disorders, and apathy (defective attitudes and inability to expend effort constructively), enuresos, homosexual tendencies, and alcoholism.  A GD was normally appropriate.  The separation authority could issue an HD if supported by the members overall record of service.  

9.  On 23 November 1972, the authority for unsuitability discharges was transferred to chapter 13, Army Regulation 635-200.   

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a states HD 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.  Paragraph 3-7b states a GD 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 discharge should be upgraded to an HD due to his good post service conduct has been carefully considered.  However, the evidence is insufficient to grant the requested relief.  

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  


3.  The applicant's DD Form 214 erroneously lists the SPN 264.  This SPN indicates he was separated based on a character and behavior disorder; however, there is no character and behavior disorder diagnosis from the examining psychiatrist who completed the mental status evaluation, and none is listed in either the separation request of the commander or the approval of the separation authority.  The separation packet suggests the reason for his discharge was either inaptitude (SPN 260) or apathy, defective attitudes and inability to expend effort constructively (SPN 49A).  

4.  Although the applicant's post-service conduct, as he presents it, is noteworthy, this factor alone is not sufficiently mitigating to support an upgrade of his discharge.  His record shows he served only 2 months and 17 days and never completed training.  

5.  Further, the applicant's record documents no acts of valor or significant achievement.  As a result, the GD he received accurately reflects his short and undistinguished record of service, which did not support the issuance of an HD by the separation authority at the time and does not support an upgrade of his discharge to an HD or a GD at this late date.

6.  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)                                         AR20090016878



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ABCMR Record of Proceedings (cont)                                         AR20090016878



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