IN THE CASE OF:	   

		BOARD DATE:	  19 February 2015

		DOCKET NUMBER:  AR20140011820 


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 reconsideration of his earlier request for an upgrade of his undesirable discharge. 

2.  The applicant states, in effect, he did nothing wrong.  He was given a choice to return to service or discontinue service.  There is nothing dishonorable about his choice.  If he had been treated for his behavioral health issues he would not have committed the crimes that destroyed his life. 

3.  The applicant provides: 

* Referral to Mental Hygiene Consult, dated 8 March 1965
* Department of Justice denial of parole, dated 24 June 2010
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC82-07923, on 13 October 1982.

2.  The applicant does not meet the criteria for a request for reconsideration.  However, the original Record of Proceedings did not fully explain the characterization of service.  As such, as a one-time exception to policy, his request will be reconsidered by the Board.

3.  The applicant enlisted in the Regular Army for 3 years on 14 August 1964.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 941.00 (Cook). 

4.  On 19 October 1964, he departed his unit in an absent without leave (AWOL) status but he returned to military control on 30 October 1964.  Upon his return, he was placed in confinement from 30 October 1964 pending the disposition of his case.  

5.  On 24 November 1964, he again departed his unit in an AWOL status and shortly thereafter, he was dropped from Army rolls as a deserter.  He ultimately returned to military control on or about 11 January 1965. 

6.  On 2 February 1965, consistent with his plea, he was convicted by a special court-martial of the above two specifications of being AWOL.  The Court sentenced him to confinement at hard labor for 4 months and a forfeiture of $52.00 pay for 4 months.  The convening authority approved the sentence on 
8 February 1965. 

7.  On 4 March 1965, the applicant appeared before a Clemency Board that recommended his immediate elimination.  The Report of Proceedings of U.S. Army Armor Center Clemency Board shows he was recommended for separation for unfitness.  

8.  On 8 March 1965, the applicant's immediate commander referred him for a mental status evaluation at Ireland Army Hospital, Mental Hygiene Consultation Service because of character disorders manifested by illegal absence resulting in him being dropped from the rolls as a deserter. 

9.  On 8 March 1965, he underwent a psychiatric evaluation at the Mental Hygiene Clinic, Fort Knox, KY.  The military physician stated that:

	a.  The applicant was an immature and extremely dependent individual who compulsively escaped from stressful situations.  His behavior had been exhibited prior to entering military service.  He exhibited little motivation for continued service. 

	b.  The applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.  He had the mental capacity to understand and participate in any board proceedings contemplated.  There were no diseases or defects in him which were sufficient to warrant separation through medical channels.  

	c.  The applicant was diagnosed with a passive-aggressive personality, chronic and severe, manifested by immaturity, impulsivity, resentment toward authority, and low stress tolerance.  This condition was not in line of duty and did exist prior to service.  The examining physician psychiatrically cleared the applicant for any administrative actions deemed appropriate by his chain of command. 

10.  Subsequent to the mental evaluation, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-208 (Personnel Separations – Unfitness – Frequent Incidents of a Discreditable Nature with Civil or Military Authorities).  The immediate commander cited the applicant's misconduct of two periods of AWOL, two periods of confinement, court-martial conviction, and deserter status. The unit commander recommended an Undesirable Discharge Certificate.

11.  On 10 March 1965, the applicant acknowledged he had been counseled and advised of the contemplated separation action and that he was afforded the opportunity to request counsel but he elected to decline.  He also acknowledged he understood if an under other than honorable conditions discharge was issued to him, he would be deprived of many or all rights as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He waived his right to a board of officers, and to appear before a board of officers, and declined to submit a statement on his own behalf.

12.  On 10 March 1965, the applicant's unit commander initiated separation action against the applicant for unfitness with the issuance of an undesirable discharge.  The commander's action was based on the recommendation of the psychiatrist together with his habitual misconduct.  The commander indicated that:

* the applicant had been AWOL twice, confined on two separate occasions, and convicted by a special court-martial
* he appeared before a Clemency Board on 4 March 1965 and that board recommended his immediate elimination from the Army
* he had 101 days of lost time not including his current confinement 




13.  On 11 March 1965, the applicant's senior commander recommended approval of the applicant's immediate elimination from the Army because of unfitness and recommended he be furnished an Undesirable Discharge Certificate. 

14.  On 13 March 1965, consistent with the chain of command recommendations, the separation authority approved the separation action and ordered the applicant discharged because of unfitness and that he be furnished an Undesirable Discharge Certificate.  On 19 March 1965, the applicant was accordingly discharged. 

15.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-208 with a separation program number of 28B (Unfitness – Frequent Incidents of a Discreditable Nature with Civil or Military Authorities).  His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  He completed 2 months and 
9 days of active service and he had 148 days of lost time. 

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

17.  He provides a letter from the Department of Justice, dated 24 October 2010, that shows he escaped from custody, had committed a felony, and maintained a history of violent conduct toward the law.  He is considered a high risk to commit additional crimes in the community. 

18.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides the standards for medical fitness for retention and separation, including retirement, and states that the medical treatment facility commander with primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

20.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy 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.  The applicant's records reveal an extensive history of misconduct which included two instances of AWOL, two instances of confinement, one court-martial conviction, and a recommendation for elimination by a Clemency Board.  Accordingly, his chain of command initiated separation action against him for unfitness.  His discharge was processed in accordance with applicable regulations and all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  Prior to his discharge, he underwent a psychiatric evaluation that diagnosed him with a passive-aggressive personality, chronic and severe, manifested by immaturity, impulsivity, resentment toward authority, and low stress tolerance.  This condition was not in line of duty and did exist prior to service.  His record is void of any evidence and he provided none to show he had an unfitting physical or behavioral health condition at the time of his discharge.

3.  There is no evidence in his records and he provides none to show his extensive history of misconduct was related to a mental disorder or a psychiatric condition.  The physician cleared him for any administrative action deemed appropriate by his chain of command.  

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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 to amend the decision of the ABCMR set forth in Docket Number AC82-07923, dated 13 October 1982. 



      ____________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)                                         AR20140011820



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ABCMR Record of Proceedings (cont)                                         AR20140011820



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