IN THE CASE OF:	  

		BOARD DATE:	    6 March 2012

		DOCKET NUMBER:  AR20110017836 


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, in effect, an upgrade of his undesirable discharge. 

2.  The applicant states, in effect:

* he was an immature 17-year old kid 
* he was assigned to Germany and booze and sex were everywhere
* he drank, got into fights, and missed bed check
* he received a summary court-martial and nonjudicial punishments (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for his action which were stupid, but it was not dishonorable
* he was on active duty nearly 19 months during the Vietnam War
* he is quite sure things would have been different had he been sent to Vietnam as he requested

3.  The applicant provides a copy of his 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 Regular Army on 17 March 1964, at 16 years and 10 months of age.  He completed training and was awarded military occupational specialty 11E (Armor Crewman).  The highest rank/grade he attained while on active duty was private first class/E-3.

3.  Records show the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 19 December 1964, for smoking in an M49C gas tanker
* 14 January 1965, for throwing trash from a second floor window
* 8 March 1965, for absenting himself from his unit without proper authority, not being present for bed check or reveille formation
* 14 April 1965, for failure to go and absenting himself from his unit 
* 1 June 1965, for absenting himself from his unit without proper authority
* 2 and 17 July 1965, for missing bed check

4.  On 8 May 1965, the applicant was found guilty by a summary court-martial of breaking restriction.

5.  On 25 August 1965, the applicant underwent a psychiatric evaluation in which he was diagnosed with situational maladjustment.  The evaluating physician recommended an administrative discharge.

6.  On 26 August 1965, the applicant was interviewed and advised that he may be separated from the service with an undesirable discharge.  He was also advised that an undesirable discharge would render him ineligible for Federal and State benefits.
 
7.  On 1 September 1965, the applicant's platoon commander recommended the applicant's discharge.  In his recommendation, the commander stated the applicant was a hindrance to the platoon, he was unable to perform adequately as loader, and his many infractions of rules made him totally unreliable.  

8.  On 2 September 1965, the administrative separation action was forwarded to the applicant's battalion commander for consideration.  The battalion commander concurred with the recommendation and forwarded the separation packet to the brigade commander for approval.
9.  On 5 September 1965, the applicant was medically and psychiatrically cleared for separation.

10.  On 16 September 1965, the applicant submitted statements in his own behalf.  He indicated he could be a good Soldier and be of benefit to his unit if he was given a chance to redeem himself.

11.  On 27 September 1965, the applicant was advised of the contemplated separation action.  He was again advised of the impact of the discharge action.  He waived consideration of his case by a board of officers and representation by counsel.

12.  On 27 September 1965, the discharge authority directed the issuance of an Undesirable Discharge Certificate.  On 11 October 1965, the applicant was discharged accordingly.  His DD Form 214 confirms he completed a total of 1 year, 6 months, and 25 days of creditable active military service.

13.  There is no record the applicant petitioned the Army Discharge Review Board seeking a discharge upgrade during that board's 15-year statute of limitations.

14.  Army Regulation 635-208 (Undesirable Habits and Traits of Character), then in effect, set forth the basic authority for separation of enlisted personnel having undesirable habits and traits of character.  The regulation stated, in pertinent part, that recommendation for discharge because of undesirability would be made in the case of an enlisted person who (1) gave evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct; (2) possessed unclean habits, including repeated venereal infections; 
(3) repeatedly committed petty offenses not warranting trial by courts-martial;
(4) was a habitual shirker; (5) was recommended for discharge by a disposition or other board of medical officers because he possessed a psychopathic (anti-social) personality disorder or defect, or was classified as having "no disease" by the board, and his record of service revealed frequent disciplinary actions because of infractions of regulations and commission of offenses, or it was clearly evident his complaints were unfounded and were made with the intent of avoiding service; or (6) demonstrated behavior, participated in activities, or associations which tended to show that he was not reliable or trustworthy.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an undesirable discharge was normally issued.

15.  Army Regulation 635-200 (Enlisted Separations) provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states that a general discharge 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 request for an upgrade of his undesirable discharge was carefully considered.

2.  The applicant's misconduct had a detrimental impact on his unit and clearly diminished the overall quality of his service below that meeting a general discharge.

3.  The applicant was 16 years and 10 months old when he enlisted.  However, there is no evidence he was any less mature than any other Soldiers of the same age who successfully completed their service obligations.

4.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  The record contains no evidence that the applicant was coerced or any indication of procedural or other errors that would have jeopardized his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.  Therefore, 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)                                         AR20110017836



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ABCMR Record of Proceedings (cont)                                         AR20110017836



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