IN THE CASE OF:	  

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090017983 


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 his undesirable discharge be upgraded to honorable.

2.  The applicant states:

* he wants to be seen and treated by the Department of Veterans Affairs (DVA) hospitals and clinics
* he was young and feeling physically bad so he went home looking for help from his grandmother who raised him 

3.  The applicant provides:

* Certification of Military Service
* DD Form 214 (Report of Separation from the Armed Forces of the United States)
* Lee County Law Enforcement record 

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 was born on 11 November 1934.  He enlisted in the Regular Army on 16 November 1953 for a period of 3 years.  

3.  On 21 April 1954, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 10 April to 21 April 1954.  He was sentenced to perform hard labor without confinement for 1 month.  On 21 April 1954, the convening authority approved the sentence. 

4.  On 19 July 1954, contrary to his plea, the applicant was convicted by a special court-martial of being AWOL from 22 May to 22 June 1954.  He was sentenced to be confined at hard labor for 3 months and to forfeit $55.00 pay for 3 months.  On 19 July 1954, the convening authority approved the sentence.   

5.  On 26 July 1954, the applicant underwent a psychiatric examination.  The psychiatrist found no physical or mental defects sufficient to warrant separation from the service under the provisions of Army Regulation 600-450 (Separation for Physical Disability), the applicant was found to be mentally responsible, and the psychiatrist determined the applicant had a character or behavior disorder classified as passive-aggressive reaction.  The psychiatrist strongly recommended administrative separation.  

6.  On 6 August 1954, the applicant was notified a board of officers would convene to determine whether or not he should be discharged prior to his expiration term of service under the provisions of Army Regulation615-368.  

7.  The applicant appeared before a board of officers on 6 August 1954.  The board found the applicant demonstrated evidence of traits of character which rendered retention in the service undesirable and recommended that the applicant be discharged from the service due to unfitness with an undesirable discharge.  On 13 August 1954, the officer exercising general court-martial jurisdiction approved the recommendation. 

8.  The applicant underwent a separation physical examination on 25 August 1954 and was found qualified for separation with a physical profile of 111111.  He reported that his health was "BAD" in item 12 (Statement of Examinee's Present Health in Own Words) on his Standard Form 89 (Report of Medical History). 
9.  The applicant was discharged on 27 August 1954 with an undesirable discharge under the provisions of Army Regulation 615-368 for unfitness.  He had served 5 months and 16 days of creditable active service and he had 116 days of lost time.  

10.  In support of his claim, the applicant provided a letter from the Records Clerk at Lee County Law Enforcement which states he does not have a record on file in the Sherriff's Department.   

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

12.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  Unfitness included habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct.  The regulation also provided that when discharged because of unfitness an undesirable discharge will be furnished.   

13.  Army Regulation 635-200 sets forth the basic policy 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.  

14.  Army Regulation 635-200, paragraph 3-7, 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.

15.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their 
determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): 
P-physical capacity or stamina, U-upper extremities, L-lower extremities, 
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

DISCUSSION AND CONCLUSIONS:

1.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

2.  Age is not a sufficiently mitigating factor.  The applicant was 19 years old when he enlisted.

3.  The applicant's contention he went AWOL because he was feeling physically bad was noted.  It is also noted he reported his health was "BAD" on his Standard Form 89.  However, he underwent a separation physical examination on 25 August 1954 and was found qualified for separation with a physical profile of 111111.  

4.  The applicant’s record of service included one summary court-martial conviction, one special court-martial conviction, and 116 days of lost time.  As a result, his record of service was not satisfactory and his record did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Regrettably, the applicant’s record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

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)                                         AR20090017983



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ABCMR Record of Proceedings (cont)                                         AR20090017983



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