IN THE CASE OF:	  

		BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140009930 


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.

2.  The applicant states:

* it was his first time away from home and he was extremely homesick
* he went home every time he was absent without out leave (AWOL)
* he was diagnosed with immaturity at that time – he might be diagnosed with attention deficit disorder if diagnosed today
* there were eight children in his family
* his mother was abusing the children and he felt he needed to be there to protect the other seven children

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 was born on 16 August 1948.  He enlisted in the Regular Army on 7 January 1966 for 3 years.  He was 17 years of age at that time.  He completed basic combat training.

3.  On 19 July 1966, he was convicted by a special court-martial of being AWOL from 17 to 25 April 1966 and from 27 April to 16 May 1966.  He was sentenced to confinement at hard labor for 4 months and forfeiture of $58.00 pay per month for 6 months.  On 17 August 1966, the convening authority approved the sentence, but suspended the portion adjudging confinement at hard labor for 4 months.

4.  On 21 October 1966, he was convicted by a special court-martial of being AWOL from 15 September to 4 October 1966.  He was sentenced to confinement at hard labor for 3 months and forfeiture of $50.00 pay per month for 3 months.  On 27 October 1966, the convening authority approved the sentence.

5.  On 2 May 1967, he underwent a neuropsychiatric evaluation and was diagnosed with a passive-aggressive personality with dissocial traits.  There were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  The psychiatrist recommended his separation from the service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  During a clinical interview, the applicant reported he was AWOL because he did not like to be told what to do, he disliked marching, hated walking, and was bored by having to sit in classrooms for long periods of time.  In addition, he claimed the general living conditions in the field were very upsetting to him.

6.  On 11 May 1967, he was convicted by a special court-martial of being AWOL from 5 January to 7 March 1967 and from 18 to 19 March 1967.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $60.00 pay per month for 6 months.  On 15 May 1967, the convening authority approved the sentence, but suspended the portion adjudging confinement at hard labor until 12 November 1967.

7.  On 11 May 1967, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The unit commander specifically cited the applicant's inability to cope with the standards and traditions of the service as the basis for this action.  Since the applicant's assignment to the unit on 30 November 1966 – except for approximately 35 days – he had been AWOL, in confinement, or dropped from the rolls as a deserter.  He never completed advanced individual training.

8.  The applicant's election of rights is not available.  However, the separation authority's action, dated 26 May 1967, states the applicant waived a hearing before a board of officers on 11 May 1967.  The separation authority approved the recommendation for discharge and directed the issuance of an Undesirable Discharge Certificate.

9.  On 1 June 1967, the applicant was discharged for unfitness under the provisions of Army Regulation 635-212 due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  He completed 6 months and 9 days of total active service with 195 days of lost time.

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

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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 applicant now contends he was AWOL because he was homesick and needed to protect his siblings from abuse, in 1967 he reported he was AWOL because he did not like to be told what to do, he disliked marching, hated walking, and was bored by having to sit in classrooms for long periods of time.  Nevertheless, family problems alone are normally not a basis for upgrading a discharge.

2.  The evidence of record does not support his contention that he was diagnosed with immaturity.  The medical evidence of record shows he was diagnosed with a passive-aggressive personality with dissocial traits.  Age/immaturity is not a sufficiently mitigating factor.  Although he was 17 years old when he enlisted, he successfully completed basic combat training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

3.  His brief record of service included three special court-martial convictions and 195 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an upgrade of his undesirable discharge to an honorable or a general discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

5.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

6.  In view of the foregoing evidence, there is no 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)                                         AR20140009930



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ABCMR Record of Proceedings (cont)                                         AR20140009930



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