BOARD DATE:	  20 October 2011

		DOCKET NUMBER:  AR20110008103 


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 be upgraded to general.

2.  The applicant states:

* The punishment/type of discharge was too severe for the alleged injustice
* His mental problems should have been considered

3.  He states joining the Army was a mistake.  During the delayed enlistment waiting period, he developed a romantic relationship that complicated the situation.  He and his girlfriend maintained a residence off-post.  The information he had a house off-post and a girlfriend found its way up the chain of command and he began to get demerits for unfair reasons and he would lose his weekend pass.  This caused anxiety.  Also, flying was causing his prostate to enlarge causing pain and other complications.  He began to fall apart.  He was put on medical hold for psychiatric treatment.  From May to July, Monday through Friday, 2 hours a day he saw a psychiatrist.  It was soon obvious he couldn't complete the WOC [Warrant Officer Candidate] program.

4.  He states he was court-martialed for stealing a mattress.  When the Army was replacing thin mattresses with thicker ones, he took an old mattress home.  He was having a nervous breakdown around this time.  After his trial he checked into the hospital and expected to stay there until his discharge but he was sent to the stockade instead.  He was recommended for a general discharge.       


5.  The applicant provides:

* Service personnel records
* 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 enlisted in the U.S. Army Reserve (USAR) on 17 October 1967 for a period of 6 years under the delayed entry program (DEP).  He was discharged from the USAR DEP on 7 January 1968.  He enlisted in the Regular Army on 8 January 1968 for a period of 2 years for the Warrant Officer Flight Training Program.  He completed basic combat training.

3.  Between 8 April 1968 and 8 May 1968, he was counseled on five occasions for various infractions which included room appearance, not being prepared for inspection, attention to detail, judgment, initiative, excessive demerits, and lacking ambition in military bearing.  A special statement, dated 23 July 1968, indicates the applicant didn't possess the character, self-discipline, and motivation required for completion of the WOC program.    

4.  On 1 August 1968, he was convicted by a special court-martial of wrongful appropriation of two Government mattresses.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of $70.00 pay for 6 months, and reduction to the rank/grade of private/E-1.  On 13 August 1968, the convening authority approved the sentence but suspended the confinement and reduction to E-1 until 12 February 1969.  On 19 August 1968, the suspended portion of the sentence was vacated.   


5.  A special statement, dated 4 August 1968, indicates the applicant was absent without leave (AWOL) on 3 August 1968 and AWOL for 1 and 1/2 hours on 
4 August 1968.  A report of observation, dated 5 August 1968, indicates the applicant did not sign out of his company when he went on sick call which placed him in an AWOL status and he ignored a lawful order. 

6.  On 7 August 1968, he underwent a psychiatric evaluation and was diagnosed with an antisocial personality.  The psychiatrist stated:

* the applicant had been seen by him on multiple occasions
* the applicant had a basic character and behavior disorder
* this condition was not amenable to hospitalization, treatment in the military setting, disciplinary action, training or reclassification to another type of duty
* there were no disqualifying mental defects sufficient to warrant disposition through medical channels
* the applicant was mentally responsible
* there were no contraindications to any action deemed appropriate by his command
* the psychiatric service supports the action recommended by the applicant's chain of command which is elimination from the WOC program and separation

7.  The psychiatrist recommended he be separated from the service as expeditiously as possible under the provisions of Army Regulation 635-212 (Personnel Separations -Discharge - Unfitness and Unsuitability). 

8.  On 28 August 1968, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The unit commander cited the applicant's substandard character and behavior attested to by his conviction by special court-martial, repeated commissions of petty offenses, and habitual shirking of his military duties.  The unit commander recommended the applicant be given a general discharge.

9.  On 3 September 1968, after consulting with counsel and being advised of his recommended separation for unfitness, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

10.  On 16 October 1968, he underwent a separation physical examination and was found qualified for separation with a physical profile of "1" under psychiatric.

11.  A letter, dated 22 November 1968, from the Staff Judge Advocate (SJA) to the Commanding General (CG) states the applicant's unit commander recommended he receive a general discharge.  However, when the unit commander was contacted by the SJA office he stated he had been misinformed that a general discharge recommendation would expedite the matter and that his only concern was to have the applicant eliminated as soon as possible.  In view of the applicant's attitude and record, his retention in the Army would probably result in a conviction by a general court-martial, dishonorable discharge, and long confinement.  Hence, in his own interest, as well as the Army's, "I concur in his separation now."  The SJA recommended the CG approve the recommendation for separation and that an Undesirable Discharge Certificate be issued.    

12.  On 26 November 1968, the separation authority approved the recommendation for separation and directed the issuance of an Undesirable Discharge Certificate.

13.  On 6 December 1968, he was discharged under the provisions of Army Regulation 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with civil or military authorities.  He completed 7 months and 11 days of total active service with 110 days of time lost.

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

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities was subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

16.  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.

17.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, 

and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

DISCUSSION AND CONCLUSIONS:

1.  He contends his mental problems should have been considered.  However, although he was diagnosed with an antisocial personality (a basic character and behavior disorder), the psychiatrist found him mentally responsible.  The psychiatrist also determined his condition was not amenable to hospitalization, treatment in the military setting, disciplinary action, training or reclassification to another type of duty and there were no disqualifying mental defects sufficient to warrant disposition through medical channels.  

2.  The evidence of record supports his contention he was recommended for a general discharge.  His unit commander initially recommended he receive a general discharge in August 1968.  However, when the unit commander was contacted by the SJA office in November 1968 he stated he had been misinformed that a general discharge recommendation would expedite the matter and that his only concern was to have the applicant eliminated as soon as possible.  It appears the unit commander concurred with the issuance of an undesirable discharge in November 1968. 

3.  His remaining contentions were noted.  However, his brief record of service included one special court-martial conviction and 110 days of time lost.  As a result, his record of service was not satisfactory.  Therefore, his record of service is insufficiently meritorious to warrant an upgrade of his undesirable discharge to a general discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110008103



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ABCMR Record of Proceedings (cont)                                         AR20110008103



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