IN THE CASE OF:	   

		BOARD DATE:	  15 May 2014

		DOCKET NUMBER:  AR20130015270 


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 discharge under honorable conditions (general) to fully honorable.

2.  The applicant states he was told he would be given an honorable discharge.  He further states he has been an outstanding citizen since his discharge 51 years ago.

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.  After having previous enlisted service, the applicant reenlisted in the Regular Army on 10 May 1963 and held military occupational specialty 140.00 (Field Artillery Basic).

3.  On 13 September 1963, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for using another Soldier's privately-owned vehicle without permission and causing damage to the vehicle without providing reimbursement.

4.  His records contain a psychiatric evaluation, dated 18 September 1963, wherein the examining psychiatrist stated the applicant's military service had been quite unsatisfactory.  His service was characterized by repeated incidents of being absent without leave (AWOL), a habitual failure to pay just debts, writing bad checks, and misappropriation of an automobile.  He caused significant problems for his chain of command and was an embarrassment to the military.  His psychiatrist diagnosed him as having an antisocial personality and recommended his separation from military service under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) or Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability).

5.  His records contain six statements from several members of his chain of command who indicate the applicant received numerous letters of indebtedness, had written numerous bad checks, had been arrested and held in jail for attempting to cash worthless checks, misappropriated a vehicle belonging to another Soldier and caused significant damage, had been AWOL on several occasions, and received NJP under the provisions of Article 15 of the UCMJ on four occasions for various instances of misconduct.  He borrowed money from several of his fellow Soldiers without repaying them and did not maintain a Soldierly appearance or military bearing.  The applicant had not been much value to his unit due to his poor attitude and job performance, constant trips to sick call, and requirement for close supervision.  Additionally, the applicant had become an administrative burden to his chain of command due to his numerous letters of indebtedness, behavior, and performance issues.  The chain of command felt he should be separated from military service under the provisions of Army Regulation 635-209.

6.  On 10 October 1963, his commander recommended his separation from military service under the provisions of Army Regulation 635-209 and ordered him to appear before a board of officers.  His commander stated he was unable to conduct himself or his affairs in such a manner as to be of value to the military. 
The applicant had no sense of responsibility with regard to family, finances, or morality and his retention would continue to bring discredit to the service.  His commander further stated the applicant's actions were indicative of his lack of self-discipline and showed a pattern of misconduct that could not be accepted in the Army.

7.  On 11 October 1963, the applicant acknowledged notification of his commander's intent to discharge him under the provisions of Army Regulation 635-209.  He further acknowledged he was advised of the basis for the discharge action and the procedures and rights available to him.  He waived consideration of his case by a board of officers, elected not to submit a statement on his own behalf, and waived representation by military counsel.

8.  On 18 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 24 October 1963, he was discharged accordingly.

9.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under honorable conditions under the provisions of Army Regulation 635-209 and issued the separation program number (SPN) 46A (Apathy).  He completed 5 months and 15 days of net active service during this period.  

10.  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.

11.  Army Regulation 635-5-1 (Separation Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  The regulation in effect at the time of the applicant’s discharge stipulated that SPN 46A was the appropriate code to assign Soldiers separated under the provisions of Army Regulation 
635-208 by reason of apathy.

12.  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.

13.  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 applicant's administrative discharge was accomplished in compliance with applicable regulations in effect at the time with no procedural errors which would have jeopardized his rights.  Based on his overall record, the type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  

2.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel.  Accordingly, his immediate commander initiated discharge action against him for unsuitability and he was discharged under honorable conditions and issued the SPN Code 46A (Apathy) on 24 October 1963.  

3.  His record contains a history of NJP, AWOL, indebtedness, car theft, and statements from various members of his chain of command who stated he was unable to perform his military duties without constant supervision.  As such, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting an honorable or 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)                                         AR20130015270



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ABCMR Record of Proceedings (cont)                                         AR20130015270



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