IN THE CASE OF:	  

		BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120003448 


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 to general under honorable conditions.

2.  The applicant states his issues in the U.S. Army were due to medical conditions that did not allow him to adjust to military life.  He was treated unfairly by the officer in charge.  If it had not been for these issues his service would have been honorable.  He also claims to have been a good citizen since his discharge and had intended to serve his country honorably.

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.  On 18 May 1964, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 941.10 (Cook).

3.  On 24 September 1964, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) on or about 6 September 1964 to 15 September 1964.

4.  On 22 October 1964, the applicant accepted nonjudicial punishment for failing to go to his appointed place of duty.

5.  On 23 January 1965, the applicant was convicted by a special court-martial of being AWOL on or about 1 December 1964 to 26 December 1964.

6.  A Standard Form 88 (Report of Medical Examination), dated 8 February 1965, indicates in item 74 (Summary of Defects and Diagnoses) that the applicant had an antisocial personality.  He was medically qualified for separation.

7.  The applicant's available records do not contain a copy of his psychiatric examination wherein he was diagnosed with having an anti-social personality.

8.  The complete discharge packet is missing from his military records.  However, his DD Form 214 shows he was administratively discharged on 12 March 1965 under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) for unfitness.  He completed 6 months and 5 days of creditable active duty service and had 110 days of lost time.  His service was characterized as under other than honorable conditions.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated the individual was not amenable to rehabilitation measures or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities.  An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized as directed by the convening authority.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to general under honorable conditions because his problems were due to his medical condition.

2.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

3.  In the absence of evidence to the contrary, it is presumed the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

4.  The applicant’s claim of good post-service conduct is noted.  However, he has not provided any supporting documentation that would possibly mitigate his repeated acts of indiscipline during his military service.

5.  In view of the foregoing, the applicant's request should be denied.

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 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)                                         AR20120003448



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ABCMR Record of Proceedings (cont)                                         AR20120003448



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