IN THE CASE OF:	  

		BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090018970 


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 upgrade of his undesirable discharge to a general discharge under honorable conditions.

2.  The applicant states that as a child he had a severe case of fallen arches.  After he entered the Army this caused him much pain while wearing heavy combat boots, standing in formation, and running for long periods of time.

   a.  He states there were numerous occasions where he was not able to participate in strenuous activities due to the problem with his feet.  However, medical officials refused to acknowledge his claim.

   b.  He states he was recommended for discharge based on unfitness.  He accepted the undesirable discharge because his situation became a physical and mental issue and he could not continue to serve in the Army.

3.  The applicant provides copies of his discharge documents.

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 inducted into the Army of the United States and entered active duty on 3 April 1968.  He was assigned to the U.S. Army School and Training Center, Fort Gordon, Georgia, to attend basic combat training.

3.  A Mental Hygiene Consultation Report, dated 17 June 1968, shows the applicant's commanding officer requested a psychiatric evaluation of the applicant prior to his court-martial.

	a.  The psychiatrist found the applicant had a long-standing history of foot problems which existed prior to entering the service.  He stated the applicant's family and civilian doctor reinforced the idea that the applicant was not capable of performing certain exercises.  His problem with his feet in the Army was a continuation of the over-protected environmental influence, coupled with strong dependent needs, and influenced by wishes to be relieved of military duty.

	b.  The psychiatrist found no evidence of any mental condition which would warrant consideration for treatment, hospitalization, or other disposition via medical channels.  He added that the applicant possessed sufficient mental capacity to act in his own behalf in administrative procedures deemed necessary by the command.

4.  On 6 August 1968, the applicant was tried by a special court-martial.  He pled not guilty to the charge of five specifications of willfully disobeying lawful commands from his superior officers.  He was found guilty of four specifications of the charge.  The approved sentence provided for the forfeiture of $68.00 pay for 6 months and confinement at hard labor for 6 months (suspended until 22 January 1969), at which time, unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.

5.  On 20 August 1968, the applicant's commander notified him of his intent to recommend him for discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.

	a.  The administrative separation packet shows the applicant was evaluated by Army medical officials for his problem with his feet on numerous occasions and found fit for full duty.

	b.  He was counseled by his noncommissioned officers and commissioned officers on his responsibilities and duties, he refused to accept his military duties, and he often sat down and refused to perform his duties.

6.  On 27 August 1968, the applicant consulted with counsel and waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also indicated he would not submit statements in his own behalf.  The applicant acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an undesirable discharge was issued to him.  He also acknowledged he understood that he could be ineligible for many or all benefits as a veteran under both Federal and State laws as a result of the issuance of an undesirable discharge.

7.  The immediate and intermediate commanders recommended approval of the applicant's discharge for unfitness with a characterization of service of under other than honorable conditions.

8.  On 25 September 1968, the separation authority waived further counseling and rehabilitation, approved the discharge under the provisions of Army Regulation 635-212 for unfitness, and directed that a DD Form 258A (Undesirable Discharge Certificate) be issued.

9.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 3 October 1968 in accordance with Army Regulation 635-212 with service characterized as under other than honorable conditions.  At the time he had completed 6 months and 2 days of net active service.

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

11.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  This Army regulation provides that when separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 that his discharge should be upgraded to a general discharge under honorable conditions because the problem with his feet became a physical and mental issue and he could not continue to serve in the Army.

2.  The applicant's contentions were carefully considered.

	a.  The records show the applicant was evaluated by medical officials for his problem with his feet on numerous occasions and he was found fit for full duty.

	b.  A psychiatric evaluation revealed no evidence of any mental condition which would warrant consideration of the applicant for treatment, hospitalization, or other disposition via medical channels.

	c.  Thus, the evidence of record refutes the applicant's contentions.

3.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He was appropriately issued an undesirable discharge and he has not provided any evidence sufficient to support upgrading his 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.  Therefore, there is no justification 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)                                         AR20090018970



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018970



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1