IN THE CASE OF: 

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120010049 


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 (UD) to a general discharge.

2.  The applicant states he was very young, age 17, and immature [when he joined the Army].  His only violations were being absent without leave (AWOL) several times.  He really did enjoy being in the 101st Airborne Division, Fort Campbell, KY.  He is now age 67 and he needs Department of Veterans Affairs (VA) medical care.  He is only asking for a general discharge.  His sergeant told him he was too young to join but that he would make a good Soldier.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and two statements of support.

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.  Having had prior service in the Army National Guard, the applicant's records show he enlisted in the Regular Army on 4 February 1963 when he was 18 years and 5 months old and he held military occupational specialty 310.07 (Field Communications Specialist).  On 24 April 1963, he was assigned to the Mortar Battery, 1st Airborne Battle Group, 327th Infantry, Fort Campbell, KY.

3.  On 27 August 1963, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being AWOL from his assigned unit from 19 to 26 August 1963.

4.  On 27 January 1964, he was convicted by a special court-martial of one specification of being AWOL from his assigned unit from 6 to 13 January 1964.

5.  On 22 June 1964, he was convicted by a special court-martial of one specification each of being AWOL from his assigned unit from 3 to 11 February 1964, and from 19 to 30 May 1964.

6.  On 21 July and 21 August 1964, he underwent a psychiatric evaluation.  The examining physician diagnosed him with passive dependency and passive aggressive personality - severe and determined there was no evidence of neurotic or psychotic symptomatology.  He stated administrative separation should be considered in view of the applicant's past record and his expressed lack of motivation to continue in the military and to perform effectively.

7.  On 25 August 1964, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness), by reason of unfitness.

8.  On 25 August 1964, the applicant acknowledged notification of the basis for the contemplated separation action being initiated against him and of the procedures and rights available to him.  He further acknowledged he understood that if he was issued a UD he could expect to encounter considerable prejudice in civilian life and he could be ineligible for many or all benefits as a veteran.  He waived consideration of his case before a board of officers, declined to seek counsel, and elected not to submit a statement on his own behalf.



9.  On 1 September 1964, his senior commander recommended approval of the discharge action against him with the issuance of an Undesirable Discharge Certificate.  The commander stated the applicant had been counseled frequently by his immediate commander and his attitude had remained totally negative.

10.  On 10 September 1964, the separation authority approved his separation action under the provisions of Army Regulation 635-208 for unfitness and directed the issuance of an Undesirable Discharge Certificate.  On 11 September 1964, he was discharged accordingly.

11.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-208, by reason of unfitness, with a UD.  He completed 11 months and 27 days of net active service with 222 days of time lost due to being AWOL and in confinement.

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  The applicant provides the following statements in support of his request:

	a.  A statement, dated 23 April from the Honorable REB, State Representative, Louisiana House of Representatives, recommending the Southeast Louisiana VA offer the applicant any services they could for his medical needs.

	b.  A statement, dated 3 May 2012, from the Honorable JAA, State Senator, State of Louisiana indicating he has known the applicant many years; they grew up in the same community.  This statement also indicates the applicant was applying for VA medical assistance and the recommendation was that the applicant be offered any services he could be offered for his medical needs.  

14.  Army Regulation 635-208, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when it was clearly established that despite attempts to develop him as a satisfactory Soldier, further effort was unlikely to succeed, rehabilitation was impracticable, and the individual was not amenable to rehabilitation.  This regulation prescribed that an individual discharged for unfitness would be furnished an UD, except when an honorable or a general discharge was warranted by the particular circumstances.

15.  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.

16.  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 of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP and two special court-martials he received for going AWOL on four separate occasions.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action 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 separation were therefore appropriate considering all the facts of the case.

3.  The applicant contends his discharge should be upgraded because he was young and immature at the time of his service.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  Based on his overall record, the applicant's service clearly did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to a general or 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)                                         AR20120010049



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ABCMR Record of Proceedings (cont)                                         AR20120010049



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