IN THE CASE OF:	  

		BOARD DATE:	20 March 2012

		DOCKET NUMBER:  AR20110018846 


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 discharge, from under honorable conditions (general) to an honorable discharge.  

2.  The applicant states:

* he was discharged because they [unspecified] said he was untrainable
* he was struck by lightning in basic training, and he wasn't allowed to obtain medical treatment
* following that incident, he began having problems remembering things he was being taught
* he was told his discharge could be upgraded to honorable 
* he did not want to leave the service, and he tried to get his chain of command to support his retention on active duty; however, he was unable to prevail in this endeavor
* as a result of his discharge, he has had extreme difficulty in obtaining and maintaining employment
* his discharge was an extreme injustice to him, considering it was caused by something not of his doing

3.  The applicant did not provide any additional evidence.

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 was inducted into the Army of the United States on 3 May 1960. 

3.  On 21 October 1960, he underwent a psychiatric evaluation at Ireland Army Hospital, Fort Knox, KY, to examine his mental and physical condition prior to the commencement of elimination proceedings for unsuitability.  

4.  His record contains a DA Form 1049 (Personnel Action), dated 21 October 1960, subject: Psychiatric Evaluation.  This form shows:

   a. As the basis for his proposed elimination, the applicant's immediate commander cited the applicant's inability to grasp and hold the training he was receiving.  His commander stated that additional training, in no way, could bring the applicant up to the standard the training required.

   b. The examining neuro-psychiatrist stated he had examined the applicant and reviewed the information in his medical records.  He stated the applicant had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels; he was and is mentally responsible, able to distinguish right from wrong and adhere to the right, and has the mental capacity to understand and participate in board proceedings.  He stated his belief that the applicant should be considered for elimination under the provisions of Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability).
   
   c. The examining neuro-psychiatrist diagnosed the applicant with borderline mental deficiency that existed prior to service.  He further characterized the applicant as "an unusually motivated individual who was "helped" through basic training.  Unfortunately, he is out of his depth in advanced individual training (AIT) and he despairingly recognizes this.  Despite this man's intense desire, it is unlikely that he can be successfully trained.  Subject should be separated from the service under any administrative discharged deemed appropriate."

5.  On 24 October 1960, the applicant's commander notified him of his intent to process him for elimination under the provisions of Army Regulation 635-209, for unsuitability.  On the same date, the applicant acknowledged the notification and he elected to decline counsel and waived his right to have his case heard by a board of officers.  He also elected not to submit a statement in his own behalf.

6.  On 24 October 1960, the applicant's commander recommended his elimination from the service under the provisions of Army Regulation 635-209, for unsuitability.  In his recommendation, the commander cited the applicant's repeated failure of academic proficiency tests as a key factor in his elimination recommendation.  He noted the applicant did not show an interest in trying to absorb or retain the training he was being taught.  He characterized the applicant's conduct as good and his efficiency as unsatisfactory.

7.  On 14 November 1960, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-209 and directed the issuance of a General Discharge Certificate.  

8.  On 21 November 1960, the applicant was discharged accordingly.  The       DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows his character of service as under honorable conditions.  This form further shows he completed 6 months and 19 days total active service.  

9.  His service medical records were not available for review.  There is no documentation in the available record, nor has he provided any documentation, that shows he was treated for an injury resulting from a lightning strike.

10.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-209, then in effect, established the policy and provided guidance and procedures for the prompt elimination of enlisted personnel who were determined to be unsuitable for further military service.  An individual would normally be issued an honorable or a general discharge, as warranted by the individual's military record.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Separations), currently in effect, provides the policies and procedures for the separation of enlisted personnel.  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 Soldier’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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded.

2.  The evidence of record shows he demonstrated he could not or would not meet acceptable standards required of enlisted personnel, as evidenced by his repeated failures of AIT proficiency exams and his lack of interest in trying to absorb or retain the training he was being taught.  Accordingly, his immediate commander initiated separation action against him and he was discharged on   21 November 1960 with an under honorable conditions (general) discharge. 

3.  The applicant contends his academic failures can be attributed to an incident that occurred in basic training, in which he was struck by lightning, but denied medical treatment.  There is no documentation in his available record, and he has not provided any documentation, that shows he was injured from a lightning strike.  Had he been struck by lightning, it is reasonable to presume he would have been provided medical treatment and that treatment would have been annotated in his records.  

4.  His administrative separation was accomplished in compliance with applicable regulations in effect at the time, with no procedural errors which would have jeopardized his rights.  Based on his lack of academic proficiency and lack of desire to overcome his deficiencies, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable 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)                                         AR20100026592



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ABCMR Record of Proceedings (cont)                                         AR20110018846



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