IN THE CASE OF:	  

		BOARD DATE:  9 February 2012

		DOCKET NUMBER:  AR20110014695 


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 undesirable discharge. 

2.  The applicant states his sense of duty was honorable but his young, underdeveloped mind was not.  He states the Army subjected him to humiliation on an ongoing basis; he was so full of anger he “could not address or unleash in a constructive manner.”  He was punished because of an immature act on his part and a misunderstanding of a fact by the military.  He now sees the errors of his thinking and actions.  He further states he was fooled into believing he could agree to a "dishonorable discharge" and change his mind before he was separated.

3.  He provides no additional documentary evidence in support of this application.

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.  He enlisted in the Regular Army on 31 December 1958, at age 17.  He completed initial entry training.  The highest rank/grade he held was private first class/E-3.

3.  His record contains two DA Forms 26 (Record of Court-Martial Conviction).  These documents show on:

* 29 July 1960, he was convicted by a special court-martial, pursuant to his guilty plea, of leaving his post as a sentinel before he was regularly relieved
* 2 November 1960, he was convicted by a summary court-martial of having a switch-blade knife in his possession
* 11 January 1961, he was convicted by a summary court-martial of being  absent without leave (AWOL)
* 30 March 1961, he was convicted by a special court-martial of being AWOL

4.  On 12 April 1961, the applicant was given a psychiatric evaluation.  The diagnosis was passive-aggressive reaction, chronic, moderate.  The psychiatrist stated there was no psychiatric contra-indication (reason that makes it inadvisable) to administrative separation under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness).  However, since the applicant's diagnosis was considered to be a character and behavior disorder, it was felt that administrative separation under the provisions of Army Regulation 635-209 (Personnel Separations, Discharge, Inaptitude or Unsuitability) was more appropriate.  As part of the pertinent history the psychiatrist indicated the applicant had two summary courts-martial, one special court-martial, and one instance of nonjudicial punishment.  It was stated the applicant was resentful and the usual type of punishment had not been effective in correcting his attitude or behavior.  He had little or no respect for regulations and interprets such regulations as applying to other people rather than to himself.  He had been transferred from one unit to another without the desired rehabilitative affect.

5.  The record contains a signed statement by the applicant wherein he acknowledged he had been notified that a recommendation was being submitted for his elimination from the service under the provisions of Army Regulation 
635-208.  He acknowledged he had been advised he may be given an undesirable discharge as a result of the action recommended.  He was further advised of the effects and incidents of such a discharge.  He further acknowledged he was afforded the opportunity of requesting counsel; however, he declined the opportunity.  He also waived his right to appear before a Board of Officers and elected not to submit a statement in his own behalf.

6.  An intermediate commander stated separation under the provisions of Army Regulation 635-209 was not deemed appropriate and he recommended the applicant be discharged under the provisions of Army Regulation 635-208.  It was the opinion of that Headquarters that the applicant's disciplinary record, i.e., two special and two summary courts-martial and one nonjudicial punishment, indicated incorrigibility, rather than a character disorder, and therefore precluded elimination under the provisions of Army Regulation 635-209.

7.  On 26 May 1961, the separation authority directed the applicant's discharge from the service under the provisions of Army Regulation 635-208 for unfitness and directed the applicant be furnished an Undesirable Discharge Certificate. 

8.  On 13 June 1961, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 
635-208 (unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities) and given an undesirable discharge.  This form also shows he completed 2 years, 4 months, and 4 days of total active service with 41 days of time lost.

9.  There is no evidence the applicant sought assistance through his chain of command, Inspector General, Equal Opportunity office, or any other available supporting agency concerning any racial, ethnic, or religious issues.

10.  On 18 January 1974 and 19 January 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his undesirable discharge.

11.  Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included frequent incidents of a discreditable nature with military or civilian authorities.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-209, then in effect, set forth the policy and procedures for separation of enlisted personnel for inaptitude or unsuitability.  This regulation provided that when it was determined, through proper board action, an individual could not be developed to the extent where he may be expected to absorb further military training and/or become a satisfactory Soldier he will be discharged.  This regulation provided that a Soldier was to be discharged for unsuitability when it was determined he was unsuitable due to character or behavior disorders in schizoid, paranoid, cyclothymic, inadequate or asocial personalities.  This regulation further provided that separation for unsuitability would be accomplished in cases of individuals manifesting such personality patterns when appropriate on the basis of adjustment, behavior or performance in service.  Paragraph 8 directed that an individual discharged for unsuitability would be furnished a General Discharge Certificate.

13.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s age at time of enlistment was noted.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge.

2.  His record shows he was convicted on four occasions by either summary or special courts-martial and he accepted nonjudicial punishment on one occasion.  His record shows he had a total of 41 days of time lost.  These frequent instances of indiscipline clearly show he did not meet the standards of acceptable conduct and performance of duty for military personnel.  These frequent instances and the fact that he completed less than half of his enlistment commitment shows his service to be unsatisfactory.

3.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  He was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.
4.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to an honorable discharge or to a general discharge under honorable conditions.

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)                                         AR20110014695



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ABCMR Record of Proceedings (cont)                                         AR20110014695



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