IN THE CASE OF:	  

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090019025 


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 reconsideration of the Board's denial of his previous request for upgrade of the undesirable discharge of his deceased brother, a former service member (FSM).

2.  The applicant states that he still maintains there is ample evidence to show that due care was not exercised by the recruiter in enlisting the FSM.  He further states that had the recruiter properly vetted the FSM and his mother, he would have learned that he was a very troubled young man who had deep-rooted social and psychological problems and an extensive juvenile police record.  The applicant indicates the recruiter did not use due diligence when he accepted an affidavit from the FSM's mother citing the FSM's date and place of birth when the recruiter could have obtained a certified copy of the FSM's certificate of birth across the hall from where he recruited the FSM.  He states that while the FSM was confined in the post stockade at Fort Dix, New Jersey, in October 1948, a psychiatric worker and the Chief of Mental Hygiene Consultation Service determined that the FSM was 16 1/2 years of age at the time of his enlistment and diagnosed him as having an inadequate-type pathological personality and borderline mental deficiency.  He states that he believes the FSM's discharge was unfair and too severe because he was a very sick young man who should not have been allowed to enlist.  He asks that the Board remove the language "physically unfit deserter" from his discharge.

3.  The applicant provides a clinical abstract (Exhibit B), certificate of baptism, and Walter Reed General Hospital Form 34 (Report of Proceedings of Board of Officers).  Also available are the following:  certificate of birth for R____ E____ R____; physical and mental examination for R____, R____ J____; WD AGO Form 53-59 (Enlisted Record and Report of Separation – Undesirable Discharge) for R____, R____ J.; numerous discharge related documents; summary of neuropsychiatric evaluations of R____, R____ J., dated 1 November 1948; Mental Hygiene Consultation Services, 9th Infantry Division, Fort Dix, New Jersey, progress notes, dated 6 October 1949; certificate of death for R____ J____ R____; certificate of birth for J____ R____, citing common parentage; and obituary of R____ J____ R____, citing J____ R____ as brother.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080009455 on 12 November 2008.

2.  The clinical abstract provided by the applicant is new evidence which requires that the Board reconsider his request.

3.  The FSM's WD AGO Form 21 (Enlistment Record) shows his date of birth as 26 May 1930 in item 1 (Date of Birth).  In item 23 the FSM acknowledged that he would be tried by court-martial for fraudulent enlistment on the basis of securing an enlistment by means of any false statement, willful misrepresentation, or concealment as to qualification for enlistment.  The "Remarks" portion of this document shows that the applicant's mother consented to the FSM's enlistment in an affidavit and both the FSM and a recruiting officer authenticated this document with their signatures.

4.  The FSM's record contains a copy of the affidavit by the FSM's mother, dated 29 November 1947, in which she certifies she was the FSM's mother and legal guardian and verifies the FSM was born on 26 May 1930 and was 17 years of age at the time.  The affidavit also indicates the FSM's date of birth was verified by a certificate of baptism.  The FSM's mother and a recruiting official authenticated this document with their signatures and the document was notarized on 28 November 1947.

5.  The FSM's record contains a physical and mental examination, dated 1 December 1947, which shows in item 39 that the examining physician determined the FSM was mentally and physically qualified for service in the U.S. Army in a general service capacity.

6.  On 1 December 1947, the FSM enlisted in the Regular Army for 3 years and entered active duty.  He was awarded military occupational specialty 0590 (Duty Soldier).

7.  The FSM's WD AGO Form 24A (Service Record) shows in section 13 (Record of Trials by Courts-Martial) that on 13 September 1948 a special court-martial found the FSM guilty of being absent without leave (AWOL) on two occasions and breaking arrest.

8.  Section 13 of the FSM's DA Form 24A also shows two summary courts-martial convictions.  Both of these convictions were for his being AWOL.

9.  The FSM's record contains an Adjutant General's Records Administration Center Form 1-21 (Record of Determination), dated 25 January 1950, which shows he accrued 411 days of lost time.  This occurred during nine separate periods of AWOL and two periods of confinement.

10.  The FSM's record also contains a summary of a neuropsychiatric evaluation, dated 1 November 1948.  This document provides two summaries of the FSM's mental status provided by a psychiatric social worker and the Chief, Mental Hygiene Consultation Service, Fort Dix, New Jersey.  This summary indicates the FSM was 16 1/2 years old at the time of his enlistment in the Army and provided a diagnosis of inadequate-type pathological personality and borderline mental deficiency.  It also contained a recommendation that the FSM be separated from the military service.

11.  On 14 September 1949, a board of officers convened to consider the FSM's disposition.  This board found, in effect, that the FSM was able to distinguish right from wrong and to adhere to the right and that he was mentally capable of intelligently conducting or cooperating in his own defense.  The board recommended the FSM not be court-martialed and that he instead be expeditiously discharged under the provisions of Army Regulation 615-366 (Convenience of the Government Discharge) for aggravated AWOL and physical disability.  On 19 September 1949, the appropriate authority approved the recommendation of the board of officers.

12.  A Headquarters, 9th Infantry Division, letter, dated 4 October 1949, indicated the charges against the applicant were quashed and that he would be discharged as a physically unfit deserter.

13.  On 12 October 1949, the FSM was separated from active duty after completing 8 months and 17 days of creditable active military service and accruing 415 days of lost time due to AWOL and confinement.  The WD AGO 
Form 53-59 he was issued at the time confirms he was separated under the provisions of section II, Army Regulation 615-366, by reason of being a physically unfit deserter and that he was issued an undesirable discharge.

14.  The applicant provides a copy of the FSM's birth certificate which shows his name as R____ E____ R____ vice R____ J. R____ and date of birth as 26 May 1931 vice 1930 as indicated in his records.  Additionally, the FSM's death certificate shows his name as that used in his military records.

15.  The FSM twice petitioned the Army Discharge Review Board for an upgrade of his discharge.  The board determined that the applicant's discharge was proper and equitable and voted to deny his request on 5 May 1950 and again on 10 June 1953.

16.  Army Regulation 615-366, in effect at the time, set forth the authority for the separation of enlisted personnel of the Army.  Section II provided policies and procedures for the separation of physically unfit deserters and absentees.  An undesirable discharge was normally considered appropriate for members separated under this provision of the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM's Undesirable Discharge should be changed because his recruiter did not confirm the FSM's date of birth, age, legal name, and mental status resulting in an illegal and erroneous enlistment was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms that both the FSM and his mother provided the recruiter a copy of the FSM's baptism certificate to confirm that he was at least 17 years of age at the time of his 1 December 1947 enlistment in the Army, as evidenced by the 29 November 1947 notarized affidavit on file.  While the applicant provides a birth certificate which shows a date of birth in 1931, the name on that birth certificate is not the same as the FSM's name on his military records or that on his certificate of death.

3.  The FSM was found to be mentally and physically fit for military service by the appropriate medical officials as evidenced by the physical and mental examination report prepared during the FSM's enlistment process.  He was also found mentally competent to participate in his separation processing as confirmed in the proceedings of the board of officers that considered his case.

4.  The evidence of record confirms the FSM entered active duty on 1 December 1947, completed basic training, and served through 1 March 1948 before he committed his first AWOL offense.  This provides an indication of his physical and mental capabilities to successfully serve in the Army.  His separation processing was accomplished in accordance with the applicable regulation in effect at the time and his discharge accurately reflects his overall record of offenses.

5.  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 to amend the decision of the ABCMR set forth in Docket Number AR20080009455 on 12 November 2008.



      _____________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)                                         AR20090019025



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ABCMR Record of Proceedings (cont)                                         AR20090019025



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