IN THE CASE OF:	  

		BOARD DATE:	  17 November 2011

		DOCKET NUMBER:  AR20110009160 


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 an upgrade of his undesirable discharge (UD) to a general discharge. 

2.  The applicant states, in effect:
   
* It is an injustice for him to continue to suffer the adverse consequences of his discharge
* His ability was impaired by his youth and immaturity, personal problems, psychiatric problems, preexisting problems, and the use of alcohol
* He faced racial discrimination
* He was not medically qualified to serve and should have gotten a medical discharge
* He was told his discharge would be upgraded after 6 months

3.  The applicant provides:

* A self-authored statement and two character reference letters
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* DD Form 4 (Enlistment Record – Armed Forces of the United States)
* Special Court-Martial Orders Number 141 and 30
* Special Orders Number 365
* DA Form 26 (Record of Court-Martial Conviction)
* DA Form 24 (Service Record)
* DA Form 20 (Enlisted Qualification Record)
* Arrest Record
* Certificates of academic recognition, achievement, and apprenticeship
* Congratulatory letter and transcripts

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 records show he was born on 6 August 1944 and enlisted in the Regular Army at age 17 on 30 December 1961.  He completed basic combat and advanced individual training and was awarded military occupational specialty 140.00 (Field Artillery Basic). 

3.  On 10 April 1962, he was convicted by a special court-martial of one specification of unlawfully striking another Soldier in the head, chest, and back with his fist.  The court sentenced him to hard labor without confinement and a forfeiture of pay.  The convening authority approved the sentence on 20 April 1962.

4.  He served in Germany from 31 July 1962 to on or about 30 December 1962.  He was assigned to Battery A, 2nd Howitzer Battalion, 27th Artillery.  The highest rank/grade he attained during his period of military service was private/E-2. 

5.  On 21 September 1962, he was convicted by a summary court-martial of one specification of failing to obey a lawful order.  The court sentenced him to hard labor without confinement, a reduction in grade, and a forfeiture of pay.  The convening authority approved the sentence on 21 September 1962.

6.  On 17 October 1962, he underwent a psychiatric evaluation wherein he was found to have an anti-social personality.  There were no indications of neurotic or psychotic behavior.  The medical officer opined that the applicant had no desire to participate in rehabilitative efforts and doubted those efforts would have been successful.  It was very difficult for him to change his behavior.  The medical officer recommended the applicant's separation.

7.  On 12 November 1962, he underwent a psychiatric evaluation and the medical officer found no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He was also found mentally responsible, able to distinguish right from wrong, and he had the mental capacity to participate in board proceedings.

8.  Also on 12 November 1962, he underwent a separation physical examination at the 3rd Armored Division Dispensary in Germany.  The applicant indicated that he was in good health.  Aside from his anti-social personality the military doctor noted the applicant was medically qualified for separation. 

9.  On 23 November 1962, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) by reason of unfitness.  The immediate commander recommended the issuance of an Undesirable Discharge Certificate and indicated that the applicant:

* Had been transferred from another unit
* Was identified as a source of trouble because of his prior convictions, poor appearance, and bad attitude
* Had shown contempt and disrespect towards officers/noncommissioned officers
* Refused to obey orders or perform duties
* Had been frequently counseled by the unit first sergeant but he could not be rehabilitated

10.  Also on 23 November 1962, the applicant acknowledged he had been counseled and advised of the contemplated separation action and that he was afforded the opportunity to request counsel but he elected to decline.  He also acknowledged he understood if a UD was issued to him, he would be deprived of many or all rights as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He waived his right to a board of officers, and to appear before a board of officers, and declined to submit a statement on his own behalf.

11.  On 10 December 1962, the separation authority approved the applicant's discharge action under the provisions of Army Regulation 635-208 by reason of unfitness and directed that he be furnished an Undesirable Discharge Certificate. On 31 December 1962, the applicant was accordingly discharged from the Army.

12.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-208 with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  This form further confirms he completed 11 months of creditable active military service and he had 32 days of lost time.

13.  On 1 May 1981, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  He submitted a:

	a.  Self-authored statement wherein he describes his upbringing and the challenges of growing up in the 1960s.  He also describes his confinement experience and the conditions he went through.

	b.  Statement of support from an individual who describes the applicant as a giving and church-going person.

	c.  Statement of support from his brother who describes the applicant as a determined individual.

	d.  Multiple academic and/or professional certificates of recognition, achievement, or training.

15.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or honorable discharge.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 contention that his discharge should be upgraded was carefully considered.  However, there is insufficient evidence to grant him the requested relief.

2.  His records reveal a disciplinary history which includes three court-martial convictions for multiple instances of misconduct.  Accordingly, his chain of command recommended his elimination from the Army.  His discharge was processed in accordance with applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  With respect to his arguments, the applicant raises several issues and contends that these issues led to his misconduct.  However, he failed to produce the evidence or show how these issues led to his misconduct:

	a.  With respect to his age, there is no evidence that the applicant was any less mature than other Soldiers who successfully completed their service obligation.  

	b.  There is no evidence that his pattern of misconduct was caused by personal or alcohol problems or that he addressed such issues with his chain of command.  There were many legitimate avenues he could have used to address such issues had he chose to do so.

	c.  There is no evidence in his records and he failed to provide any evidence that indicate racial discrimination contributed to his misconduct or that he addressed such issues with his chain of command or utilized the vast resources available to Soldiers to address such issues. 

	d.  Contrary to his contention that he had psychiatric problems, the evidence of record shows he underwent a psychiatric evaluation that indicated there were no indications of neurotic or psychotic behavior.  He had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He was also found mentally responsible, able to distinguish right from wrong, and he had the mental capacity to participate in board proceedings.

	e.  Contrary to his contention that he should have been medically discharged, there is no evidence in his records and he failed to provide any that confirms he suffered from a disabling condition that would have warranted disposition through the Army physical disability evaluation system.  In fact he underwent a separation physical and claimed to have been in good health.  Additionally, the military doctor found him fully qualified for separation. 

	f.  Regardless of his contention that someone told him his discharge would be upgraded after 6 months, the Army has never had a policy wherein a character of service is upgraded due the passage of time. 

4.  There is no evidence in the available record and the applicant did not provide any substantiating evidence that shows his extensive misconduct was a result of any reasons except the choices he made.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

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)                                         AR20110009160



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ABCMR Record of Proceedings (cont)                                         AR20110009160



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