IN THE CASE OF:	  

		BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120009796 


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.

2.  The applicant states he couldn't follow orders because he was young, had a 6th grade education, and he had reading and spelling disabilities that were not diagnosed at the time.  He believed he was getting a medical/honorable discharge due to a head injury and a broken nose.

3.  The applicant provides:

* his WD AGO Form 53-59 (Enlisted Record and Report of Separation - Undesirable Discharge)
* two statements of support
* a six-page printout titled Asperger Syndrome Fact Sheet

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's complete military records are not available for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The applicant's reconstructed records show he was enlisted in the Regular Army (RA) on 3 January 1948 when he was 17 years and 5 months old.  At the time of his separation, he held military occupational specialty 590 (Duty Soldier). 

4.  On 16 February 1948, he was found guilty by a summary court-martial of one specification of being absent without leave (AWOL) from his assigned unit from 9 to 15 February 1948.

5.  His WD AGO Form 53-59 shows he departed the continental United States (CONUS) on 26 May 1948 and arrived in the Asiatic-Pacific Theater of Operations (APTO) on 14 June 1948.  He was assigned to Service Company, 7th Cavalry Regiment, Japan.

6.  On 3 January 1949, he was hospitalized and on 3 February 1949, he was diagnosed with, and treated for, a venereal disease (VD) "new" secondary.

7.  On 2 May 1949, he was convicted by a summary court-martial of one specification of being AWOL from his assigned unit from 17 to 30 April 1949.

8.  On 14 June 1949, he was diagnosed with, and treated for, the same type of venereal disease "new" primary.

9.  On 25 July 1949, he underwent a physical and mental evaluation.  The examining physician stated the applicant had no disqualifying physical or mental defects sufficient to warrant discharge under Army Regulation 615-361 (Enlisted Men - Discharge - Medical).  He further stated there were no contraindications to discharging him under Army Regulation 615-368 (Enlisted Men - Discharge - Unfitness) and/or Army Regulation 615-369 (Enlisted Men - Discharge - Inaptitude or Unsuitability).

10.  On 11 August 1949, the applicant appeared before a board of officers to determine if he should be discharged under the provisions of Army Regulation 615-368 for unfitness, repeated contraction of a venereal disease. 
11.  His immediate commander testified when he took command on 22 April 1949, the applicant was AWOL and returned on 30 April 1949.  He was convicted of AWOL and while in confinement, he was found to have a venereal disease again and it was diagnosed as new primary.  On 30 June 1949, the applicant's restriction was up and he asked for a weekend pass.  He was given the pass and immediately went AWOL.  The commander stated he did not believe the applicant would change or be any good to the Army.

12.  A noncommissioned officer (NCO), from Service Company, 7th Cavalry Regiment, testified he did not know the applicant until 14 July 1949, when the applicant returned from AWOL.  The applicant told the NCO he went AWOL because he had been drinking and was unable to get back because he had passed out.  

13.  The board of officers advised the applicant of his right to testify on his own behalf.  He declined to do so.  

14.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, it appears the board of officers recommended the applicant be discharged for unfitness.  

15.  His WD AGO Form 53-59 shows he was discharged from active duty on 3 November 1949, under the provisions of Army Regulation 615-368, by reason of unfitness - unclean habits including repeated venereal disease with an undesirable discharge.  He completed 1 year, 7 months, and 28 days of net active service with 63 days of time lost due to AWOL and confinement.

16.  There is no evidence in his reconstructed record that shows the applicant was diagnosed with or treated for a learning disability and/or a medical issue that would warrant a separation processing through medical channels.

17.  On 31 October 1952, he enlisted in the U.S. Air Force (USAF).  On 13 June 1956, he was discharged from the USAF by reason of AWOL and physical unfitness with an undesirable discharge.  He completed 3 years, 6 months, and 22 days of net active service with 21 days of time lost due to AWOL and confinement.

18.  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.

19.  The applicant provides two statements of support, dated 26 and 27 March 2012, wherein his sisters stated they believed the applicant had an attention deficit disorder and a learning problem all his life.  He never learned to read and never paid attention very long.  

20.  Army Regulation 615-368, in effect at the time, set forth the policy for administrative separation for unfitness.  It stated that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) evidence of habits or traits of character manifested by antisocial or amoral trends, (b) unclean habits, (c) repeatedly committed petty offenses not warranting trial by court-martial, (d) was a habitual shirker, or (e) was recommended for discharge by a board of officers.  This regulation prescribed that an undesirable discharge would be furnished.

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

22.  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.  Although the complete facts and circumstances are not available for review with this case, the applicant's WD AGO Form 53-59 confirms he was discharged under the provisions of Army Regulation 615-368 by reason of unfitness, with an undesirable discharge.

2.  In the absence of evidence to the contrary, it appears his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering the available facts of the case.

3.  There is no evidence in his reconstructed record and he did not provide any evidence that shows he was diagnosed with and/or treated for any learning or medical disorders while serving on active duty in the RA.  Additionally, the evidence of record confirms after his service in the RA, he went on to serve in the USAF for over 3 years and 6 months before being discharged by reason of AWOL and physical unfitness.

4.  The applicant contends his discharge should be upgraded because he was young and couldn't understand things at the time of his service.  	Records show he was almost 19 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

5.  His record of service shows he was convicted by two summary courts-martial of repeatedly being AWOL and he was diagnosed with a venereal disease on two separate occasions.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable or a general discharge.

6.  In view of the foregoing, there is an insufficient evidentiary basis upon which to grant the requested relief.

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)                                         AR20120009796





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ABCMR Record of Proceedings (cont)                                         AR20120009796



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