IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110003632 


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 that his undesirable discharge be upgraded to general under honorable conditions.

2.  The applicant states he wants to correct his bad judgment.

3.  The applicant provides no additional documentation.

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.  On 22 June 1959, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 630.00 (Automotive Maintenance Helper).

3.  On 16 April 1960, the applicant was convicted by summary court-martial of stealing three fatigue jackets, 18 packs of cigarettes, a canteen and cup, and a helmet liner worth a total value of $17.55.

4.  On 7 February 1961, the applicant was convicted by summary court-martial of wrongfully possessing another person's pass with the intent to deceive.

5.  On 20 March 1961, the applicant's commander requested that he be barred from reenlistment.  The commander cited the applicant's two summary courts-martial as a basis for his request.  The commander also stated the applicant was capable of doing satisfactory work but required excessive supervision.  His conduct was unsatisfactory and his efficiency was only fair.

6.  On 8 April 1961, the appropriate authority approved the request.

7.  The applicant's records indicate elimination proceedings were initiated on 21 April 1961.  The applicant received a physical examination on 21 April 1961.

8.  On 26 April 1961, the applicant underwent a psychiatric examination wherein he was diagnosed with having a chronic and severe anti-social personality.  His condition was determined to have existed prior to enlistment and was not in the line of duty.

	a.  The report states the applicant conducted himself carefully in the interview situation.  Sincerity was lacking.  His affect, while appropriate, was manifested by a strange stare.  His intelligence was average.  The applicant could neither profit nor learn from experience.  He externalized all blame.  His judgment was poor.  There was no presence of any organic brain disease or mental disease.

	b.  The report further states the applicant had the mental capacity to understand and participate in board proceedings.  He was decidedly unfit for military service.

	c.  The report recommended separation under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) for unfitness.

9.  On 3 May 1961, the applicant was convicted by special court-martial of:

	a.  operating a military vehicle without a valid permit,

	b.  leaving his sentinel post without being properly relieved, and

	c.  misappropriating a U.S. Government vehicle.

10.  The complete discharge packet is missing from his military records.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was administratively discharged on 19 June 1961 under the provisions of Army Regulation 635-208 for unfitness.  He completed 1 year, 10 months, and 25 days of creditable active duty service and had 33 days of lost time due to confinement.  His service was characterized as under other than honorable conditions.

11.  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.

12.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated the individual was not amenable to rehabilitation measures or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized as directed by the convening authority.

13.  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 undesirable discharge should be upgraded to general under honorable conditions because he wants to correct his previous bad judgment.

2.  In the absence of evidence to the contrary, it is presumed the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

4.  In view of the foregoing, the applicant's request should be denied.

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 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)                                         AR20110003632



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ABCMR Record of Proceedings (cont)                                         AR20110003632



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