IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110003255 


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 this DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to change the reason and authority for his discharge.

2.  He states that item 11c (Reason and Authority) of his DD Form 214 indicates he was mentally unstable and/or unfit for duty which was incorrect and unjust.  He maintains that his only mistake was voicing his opinion to his commanding officer and his platoon sergeant that he did not agree with the war in Vietnam.

3.  He does not provide any additional evidence. 

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 September 1962.  He served 2 years, 1 month, and 18 days of his first 3-year enlistment term and was honorably released for immediate reenlistment.  He reenlisted on 30 October 1964.

3.  On 22 August 1966, he was referred by his commanding officer for a psychiatric evaluation for his "communistic beliefs and so states that he does not believe in our form of government."  The psychiatrist said the applicant entered into the interview situation in a very belligerent, defiant manner, and flatly refused to furnish any pertinent information which would be necessary in accomplishing an adequate psychiatric evaluation.  The psychiatrist added that since the applicant refused to cooperate for an adequate psychiatric evaluation, he recommended the applicant be returned to his commanding officer for any administrative action the commander deemed appropriate.

4.  On 23 August 1966, the applicant's unit commander recommended he be required to appear before a board of officers to consider his separation from the Army under the provisions of Army Regulation 635-212 (Discharge - Unfitness and Unsuitability), unsuitability.  The commander cited the applicant's character and behavior disorders as the basis for his recommendation.

5.  On 29 August 1966, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, to personal appearance before a board of officers, and to counsel.  He also elected not to submit statements on his behalf.

6.  He acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued.  He further understood as the result of issuance an undesirable discharge under conditions other than honorable, he may be ineligible for many or all Veterans Administration benefits under both Federal and State laws.

7.  On 8 September 1966, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-212, unsuitability.  He directed that the applicant be furnished a General Discharge Certificate.

8.  His DD Form 214 shows he was discharged on 23 September 1966 under the provisions of Army Regulation 635-212 with a separation program number (SPN) of 264 and 40A and Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  His characterization of service was listed as under honorable conditions.  He was credited with completing a total of 4 years and 13 days of active service.

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

10.  Army Regulation 635-212 set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6b of the provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

11.  Army Regulation 635-5 (Personnel Separations - Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  The regulation lists the authority, SPN, and reason associated with each discharge.  It shows that SPN 264, unsuitability - character and behavior disorder and SPN 40A, unsuitability - apathy, defective attitudes and inability to expend effort.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues that the reason and authority listed on his DD Form 214 is incorrect and unjust.  The evidence of record shows he was referred to mental health for a psychiatric evaluation based on his communistic beliefs.  However, he refused to cooperate and therefore, the psychiatrist recommended the applicant for any administrative action the commander deemed appropriate.

2.  Further, the evidence of record shows his commander recommended him for separation for unsuitability based on the applicant's character and behavior disorders.  These conditions are consistent with the conditions cited above for separation for unsuitability.  

3.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  There is no evidence, and he has not provided any to prove his discharge was rendered unjustly or in error.  

4.  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 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)                                         AR20110003255





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ABCMR Record of Proceedings (cont)                                         AR20110003255



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