BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100009939 


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 (UD) be upgraded to an honorable discharge (HD).  

2.  The applicant states his discharge was improper because it was based on an isolated incident that occurred when he was 21 years old and away from home for the first time.  He further states he suffered from abdominal pain that should have prevented his induction.  

3.  The applicant provides a Standard Form (SF) 502 (Clinical Record-Narrative Summary), dated 3 August 1964; and a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 2 July 1964, in support of 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’s record shows he was inducted into the Army and entered active duty on 19 March 1964.  He was trained in and awarded military occupational specialty (MOS) 140.00 (Field Artillery Basic).

3.  The applicant’s DA Form 24 (Service Record) shows he was advanced to private/E-2 on 27 February 1965, and this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private/E-1 for cause on 29 April 1965.  

4.  The applicant’s record shows he earned the Marksman Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  His record documents no acts of valor or significant achievement.  

5.  The applicant’s disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:

a.  2 July 1964, for violating Article 92 of the UCMJ by failing to obey a lawful regulation;

b.  2 April 1965, for missing  guard mount; and 

c.  12 April 1965, for being absent without proper authority.  

6.  The applicant’s disciplinary history also includes his special court-martial (SPCM) conviction for willfully disobeying the lawful order of a commissioned officer on or about 15 October 1964.  

7. A DA Form 8-275-3 (Clinical Record Cover Sheet), dated 1 October 1964, shows the applicant was released from the hospital with a physical profile of 111111 and returned to duty with no physical limitations. 

8.   On 30 March 1965, the applicant’s unit commander referred the applicant to the mental consultation service.  He stated his reason for making the referral was the applicant’s continuing to go on sick call even though doctors, after conducting numerous tests and examinations, found nothing wrong with him.  

9.  On 1 April 1965, a psychiatrist completed a mental status examination of the applicant and found no disease.  The examining psychiatrist found the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He further concluded the applicant had no disqualifying mental defects sufficient to warrant disposition through medical channels.  

10.  On 5 April 1965, the applicant underwent a separation physical examination.  The examining physician noted no disqualifying physical defects or diagnosis and found the applicant was physically qualified for retention/separation.  

11.  The unit commander notified the applicant of his intent to initiate action to separate the applicant under the provisions of Army Regulation 635-208, by reason of unfitness, and of his rights associated with the action.  The applicant acknowledged his understanding of his rights and elected to waive his right to counsel, his right to a hearing before a board of officers, and his right to submit statements in his own behalf.

12.  On 22 April 1965, the unit commander recommended the applicant’s separation for unfitness citing the applicant’s lack of motivation and shirking of his duties as the basis for the action.  

13.  On 29 April 1965, the separation authority directed the applicant’s discharge for unfitness and that the applicant be reduced to the lowest enlisted grade and be issued a UD.  On 5 May 1965, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he was separated under the provisions of Army Regulation 635-208, by reason of unfitness, and received a UD.  It also shows he completed a total of 1 year and 21 days of creditable active military service and accrued 26 days of time lost due to confinement. 

14.  The applicant provides an SF 502, dated 2 September 1964.  It outlines his treatment during a hospital stay between 3 August and 2 September 1964.  This document lists no medical condition that would have disqualified the applicant from further service or that warranted his separation processing through medical channels.  

15.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found unfit or unsuitable for further military service.  The regulation provided, in pertinent part, for the separation of members involved in frequent incidents of a discreditable nature with civil or military authorities for unfitness.  While the separation authority could grant a GD or honorable discharge (HD), if warranted by the member's overall record of service, the issue of an UD was normally considered appropriate for members separated under these provisions. 

16.  Army Regulation 635-200 sets forth the basic authority 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his discharge was improper because it was based on an isolated incident and he never should have been inducted based on his medical condition has been carefully considered.  However, there is insufficient evidence to support his claim.  

2.  The evidence of record confirms the applicant underwent extensive medical treatment and completed a separation physical examination that all confirm he suffered from no disqualifying medical condition either at the time of his induction or the time of his discharge.  It further shows his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

3.  The evidence of record documents no acts of valor or significant achievement.  However, it does reveal an extensive disciplinary history that includes the applicant's acceptance of NJP on three separate occasions and his conviction by an SPCM.  As a result, it is clear his discharge was not based on an isolated incident and in fact does accurately reflect his overall record of undistinguished service.  His overall record of service did not support the issue of a GD or HD at the time of his discharge, and does not support an upgrade at this time.  

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)                                         AR20100009939



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)