BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100023058 


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 general discharge to an honorable discharge.  

2.  The applicant states:

* He volunteered for a 3-year commitment to proudly serve his country and to make a better life for himself and his family
* After serving 15 months in the Army, his leadership did not feel that he was best suited for the U.S. Army
* He volunteered to serve in Vietnam; however, his offer was rejected
* Over time his leadership gave up on him as a viable Soldier
* He was given no legal representation or military chaplain support when he went before the Board of Officers and the board rejected the testimony of his character witness
* His biggest fear was being ready to accept the outcome of an all-white panel concerning his separation from the military
* The final disposition did not reflect his 1 year, 4 months, and 8 days of service
* He is requesting favorable consideration to change his character of service from general to honorable and compensation for lost military time

3.  The applicant provides a self-authored letter and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 enlisted in the Regular Army on 11 August 1964 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  On 3 December 1965, the applicant's unit commander notified him that it was his intent to recommended his separation from military service under the provisions of Army Regulation 635-209 (Personnel Separations-Discharge-Unsuitability) with issuance of a General Discharge Certificate.  The commander stated the applicant was pending disciplinary actions for destruction of private property.  He does little to improve his knowledge of his job and displays a lack of interest in anything that is military.  He has no courtesy and he has a care-less attitude requiring constant supervision to get a job done.  The commander also stated that the applicant has been transferred within his platoon as well as another unit; therefore, further attempts for rehabilitation will be futile.

4.  On the same date, having been counseled and advised of the basis for the action recommended under the provisions of Army Regulation 635-209, the applicant declined counsel and requested a hearing by a board of officers.  He elected not to make a statement in his own behalf.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

5.  On 6 December 1965 charges were initiated against him for two specifications of violating Article 109 of the Uniform Code of Military Justice,(UCMJ), to wit:  on or about  7 November 1965, he willfully and wrongfully destroyed by kicking a glass panel door of a value of about $60.00, the property of Schreiber Store, Marktplatz, Baumholder, Germany.  On the same date he willfully and wrongfully destroyed by knocking out the glass of a pin ball machine, of a value of about $10.00, the property of U----a V--a K----r.  

6.  The applicant was evaluated by a Medical Corps officer on 7 December 1965. On an AE Form 3087 (Report of Psychiatric Evaluation), the medical officer stated that the applicant was alert, oriented and showed no evidence of organic brain disease or psychosis.  His mood and effect appeared to fluctuate appropriately.  He was intact and intellectual functioning appeared to be in normal range.  He was psychiatrically cleared for any administrative action deemed appropriate by the command.

7.  On 14 December 1965 he was tried and convicted by a summary court-martial of both specifications.  He was sentenced to hard labor without confinement for
45 days, reduction to the grade of private (PV1)/E-1, and forfeiture of $50.00 per month for 1 month.   The sentence was approved and ordered executed on 
15 December 1965.

8.  On 17 December 1965 the applicant acknowledged receipt of notification of a hearing before a board of officers, 

9.  The board of officers convened on 29 December 1965.  The applicant appeared before the board with counsel.  The board adjourned on 30 December 1965.  Having carefully considered the evidence of record, the board found the applicant was not qualified for further military service as outlined in Army Regulation 635-209 because of his frequent lack of interest, defective attitude, and disinterest in expending effort constructively.  As the result, the board recommended the applicant be discharged under the provisions of Army Regulation 635-209, and that a General Discharge Certificate be furnished.

10.  On 6 January 1966, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-209 for unsuitability with issuance of a general discharge under honorable conditions.

11.  On 3 February 1966 the applicant was discharged accordingly.  The
DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-209 with a general discharge.  He completed 1 year,
4 months, and 8 days of total active service with 45 days of time lost.

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

13.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must be a psychiatrist, 
if one was available.  A general or honorable discharge was considered appropriate.

14.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  His record reveals misconduct that included destruction of private property, lack of interest towards his military duties, and poor military appearance and bearing.  He was also a source of disturbance in his unit.  Accordingly, his chain of command initiated separation action against him.  

2.  The evidence of record shows his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with applicable law and regulations at the time and the character of his service is commensurate with his overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.  

3.  He has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  Therefore, there is insufficient evidence to grant him the requested relief in this 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)                                         AR20100023058



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ABCMR Record of Proceedings (cont)                                         AR20100023058



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