IN THE CASE OF:	  

		BOARD DATE:  14 August 2012

		DOCKET NUMBER:  AR20120002442 


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 a general discharge.

2.  The applicant states he was court-martialed for assault, disorderly conduct, being off post without a pass, and alcohol use.  He does not believe his discharge is in error; he received it because of reckless actions and behavior as a young Soldier.  He did not make good decisions concerning the use of alcohol and he got into trouble, for which he apologizes.  He was told if he stayed out of trouble after leaving the Army, which he has, he could apply to have his discharge upgraded to a general discharge.  He is currently having health issues and is unable to apply for Department of Veterans Affairs health benefits because of his character of service.

3.  The applicant provides no 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, and 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 21 March 1963 for a period of 
3 years and he held military occupational specialty 56A (Supply Handler).  He was assigned to Headquarters and Headquarters Company, 2nd Battalion, 68th Armored Regiment from 3 February 1964 to 3 September 1965.

3.  On 14 February 1964, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) and wrongfully wearing his fatigue uniform.

4.  On 24 April 1964, he received a psychiatric evaluation.  The medical official noted he had a longstanding basic character and behavior disorder and presumed the pattern of behavior would continue to exist permanently regardless of the administrative action taken.  The medical official diagnosed him with emotional instability based on a pathological personality type and recommended that he be considered for expeditious administrative separation in accordance with Army Regulation 635-209 (Unsuitability).

5.  On 24 April 1964, he received a DA Form 8-274 (Medical Condition-Physical Profile), for emotional instability.

6.  On 30 July 1964, he was convicted by a special court-martial of one specification of committing assault.

7.  On 17 March 1965, he was convicted by a special court-martial of one specification of driving a military vehicle while intoxicated, one specification of wrongfully operating a military vehicle, and one specification of unlawfully leaving the scene of a vehicle accident, when he was the driver of the vehicle, without making his identity known.

8.  On 26 February 1965, he received a pretrial report of psychiatric evaluation.  The medical official stated he was psychiatrically cleared for administrative action.

9.  On 23 April 1965, the applicant's commander informed him that he was recommending a bar to reenlistment against him.  The commander considered him to be substandard because of his interests and habits which frequently required disciplinary action.  The commander cited the two special court-martial actions, three Article 15s for drunkenness, and two letters of indebtedness, as the bases for his recommendation.  The commander further stated he shirked his duties, repeatedly argued and bickered with his supervisors, and his duty performance was poor.  The applicant signed an attached memorandum indicating he read and understood the allegations the commander made against him and elected not to make a statement.

10.  On 15 May 1965, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-208 (Undesirable Habits and Traits of Character), and informed him of his rights.  He elected to waive his right to a hearing before a board of officers, indicated he did not desire counsel, elected not to submit a written statement on his own behalf, and indicated he did not wish to call witnesses in his own defense.  On this same day, the applicant acknowledged receipt of the notification.

11.  On 15 May 1965, he was interviewed by a chaplain, who after the interview, concurred with the commander's recommendation that he be discharged in accordance with Army Regulation 635-208.

12.  On 8 June 1965, his bar to reenlistment was approved.

13.  On 16 June 1965, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL.

14.  On 30 July 1965, the battalion surgeon signed a memorandum indicating the applicant had been given a psychiatric evaluation and a separation medical examination and he had no mental or physical defects sufficient to warrant  disposition through medical channels.  Further, the psychiatric evaluation found he was mentally responsible, able to distinguish right from wrong, and adhere to right, and he had the mental capacity to understand and participate in board proceedings.  

15.  On 20 August 1965, the separation authority approved the applicant's discharge action under the provisions of Army Regulation 635-208 and directed the issuance of an undesirable discharge.  On 3 September 1965, the applicant was discharged accordingly.  

16.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged in accordance with Army Regulation 635-208, by reason of unfitness (frequent involvement in incidents of a discreditable nature with civil or military authorities) with a character of service as under conditions other than honorable with an SPN code of 28B.  This form further shows he completed 2 years, 1 month, and 10 days of net active service, of which 1 year, 3 months, and 7 days were credited as foreign service.  Additionally this form shows he had 123 days of lost time.
17.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel having undesirable habits and traits of character.  When separation for unfitness was warranted, an undesirable discharge was normally issued.  Recommendation for discharge because of undesirability would be made in the case of an enlisted person who gave evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct, who possessed unclean habits, including repeated venereal infections, who repeatedly committed petty offenses not warranting trial by court-martial, who was a habitual shirker, who 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 who 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.  

18.  Army Regulation 635-200 (Enlisted Active Duty 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.  

19.  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 evidence shows the applicant was convicted by two special courts-martial, he received NJP on several occasions, went AWOL on more than one occasion, and he had two letters of indebtedness in his record.  Accordingly, his chain of command initiated separation action against him.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge.

4.  The ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a correction to military records.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting a general discharge in this case.

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)                                         AR20120002442



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ABCMR Record of Proceedings (cont)                                         AR20120002442



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