BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130005006 


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 general discharge to an honorable discharge.

2.  The applicant states he is claustrophobic and when he was traveling in an armored personnel carrier (APC) he could hardly breathe.  When they stopped and everyone got out, he was very relieved.  When his commander ordered him to get back in the APC, he could not do it.  He had not been in any other trouble.  He received a letter of commendation, a letter of appreciation, and he was up for best candidate of his company in basic training.  This was a psychological problem stemming from his childhood.  He served well; better than many.  He was young and he couldn't comply with the order he was given.

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, 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 25 September 1961 at the age of 17 and he held military occupational specialty 111.00 (Light Weapons Infantryman).  He attained the rank of private first class (PFC)/E-3 on 28 August 1962.

3.  On 30 April 1963, he was assigned to the 501st Administration Company, 1st Armored Division (AD), Fort Hood, TX.

4.  On 27 July 1963, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his appointed place of duty on 26 July 1963.

5.  On 1 August 1963, he was assigned to the 1st Battalion, 6th Infantry Brigade, 1st AD, Fort Hood.

6.  On 9 September 1963, he underwent a mental status evaluation.  The examining psychiatrist stated the applicant was referred by his commander for determinations/recommendations concerning his claim of having claustrophobia.  During a training exercise, he left his APC and refused an order to return to the vehicle.  He told his commander the walls seemed to be closing in on him and he had to get out [of the vehicle] no matter what.  It was also noted that since his assignment to his current unit, he had been generally inefficient in the three positions he held in the unit.  The psychiatrist stated there was no evidence of an affective disorder or basic thought disorder.  Psychological testing revealed the applicant had an above-average intelligence quotient (IQ) but showed gross immaturity and emotional lability.  However, no permanent neurotic symptoms were discernible.  He admitted he used poor judgment in the past and manifested a boyish, immature attitude.  He was quite glib and adroit in the use of words and this suggested he was quite manipulative of others in his unit.

7.  The examining psychiatrist found the applicant had no disqualifying mental or physical defects warranting a discharge through medical channels and he was diagnosed with an emotionally unstable personality.  He further stated the condition was not amenable to hospitalization, treatment, disciplinary action, training, transfer, or a change in duty; it did not incur in the line of duty, and it existed prior to service.  He recommended the applicant be separated under the 

provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability).

8.  On 14 September 1963, he pled guilty and was convicted by a special court-martial of disobeying a lawful order.  He was sentenced to reduction to the rank of private (PV1)/E-1, forfeiture of pay for 6 months, and confinement for 3 months.  

9.  He was subsequently notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-209, by reason of unsuitability.  He acknowledged receipt of the notification, that he was advised of the basis for the discharge action, and that he was advised of the procedures and rights available to him.  He waived consideration of his case by a board of officers, elected not to submit a statement in his own behalf, and waived representation by military counsel.

10.  His immediate commander subsequently initiated discharge action against him under the provisions of Army Regulation 635-209 for unsuitability.  In the request, the commander stated:

	a.  Discharge action was recommended due to the applicant's demonstrated inability to adjust to the mannerisms and customs of the Army.  After being placed in a variety of assignments, he failed to perform any service that could be construed as beneficial to the Army.  Rehabilitative measures were tried with the applicant that terminated in utter failure to include professional psychiatric consultations.

	b.  From the time he was assigned to the unit, he presented a problem because he was missing items of clothing and did not have the funds to buy them.  He was released from his first unit job because of his smart-aleck attitude and lack, or disregard, of military courtesy toward his superiors.  He was counseled by the first sergeant (1SG) and again he failed to apply himself or respond to counseling.  Every time one of his superiors looked at him, he was sleeping or he would disappear and be gone for 2 to 3 hours.

	c.  During unit training, he decided it was too dusty to ride in an APC and was found guilty by a special court-martial after he refused orders to get in the APC.  He had stated that he wanted a discharge and didn't care how he got it.  Rehabilitative measures included frequent counseling, close and immediate supervisor, and a variety of assignments.


11.  His record contains several statements from his platoon leader, section noncommissioned officers in charge, and 1SG, wherein each described his negative attitude, bad habits, inability to perform his duties without constant supervision, deliberately reporting to duty late, failure to attempt to account for and maintain personal clothing and equipment, and his lack of desire to cooperate or take an active part in the platoon's operation.

12.  On 11 October 1963, the separation authority approved his discharge under the provisions of Army Regulation 635-209 and directed the issuance of a General Discharge Certificate.  On 4 November 1963, he was discharged accordingly.

13.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-209, by reason of unsuitability - established pattern of shirking (separation program number (SPN) 386) with an under honorable conditions characterization of service.  He completed 1 year, 11 months, and 25 days of total active service with 46 days of time lost due to being in confinement.

14.  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.

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

16.  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.

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 he received for absenting himself from his place of duty, his conviction by a special court-martial for disobeying a lawful order, and statements from various members of his chain of command who stated he could not perform his military duties without constant supervision.  Accordingly, his immediate commander initiated discharge action against him.

2.  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.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct of duty for Army personnel.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20130005006



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ABCMR Record of Proceedings (cont)                                         AR20130005006



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