BOARD DATE:	  8 September 2015

		DOCKET NUMBER:  AR20150000198 


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 under honorable conditions (general) discharge. 

2.  The applicant states 

	a.  He experienced prejudicial treatment because of his religion.  He applied to take the competitive exam for West Point and out of over 1,000 people he was selected to go to Fort Belvoir, VA.  He was ordered to bring his gear to a remote location on Oahu, Hawaii to have it shipped ahead of him to Virginia.  He was not in physical training (PT) nor was he dressed for PT.  He was also a medic and he was not required to participate.  A sergeant ordered him "to run after PT."  He followed his written orders instead to ship his gear.  He was court-martialed and given 4 months in the stockade; he accepted a general discharge to attend college and medical school.   

	b.  He was extremely more bright than most other enlisted men at the time, had high marks in his exams, and won a competitive exam to West Point Prep School.  In 1964 there was still Jewish prejudice and he was singled out and stopped from going to Fort Belvoir.  He believes the West Point officers wanted him eliminated.  Why was he not participating in PT from the start and why did he have written orders to deliver his gear for shipment?  Why was he only ordered "to run after PT" and not be involved in the whole exercise?  In fact the sergeant (who ordered him to run PT) had no authority over the medics.  


	c.  He had orders to ship and deploy to Fort Belvoir for West Point Prep School.  He was not involved in PT nor was he under the command of the sergeant giving the order.  He was selectively ordered "to run after PT."  As an individual of the Jewish faith there was still discrimination in race and religion in 1964.

3.  The applicant provides:

* General Discharge Certificate 
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* DD Form 215 (Correction to DD Form 214)

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's records show he enlisted in the Regular Army for a 3-year term on 18 April 1961.  He completed training and was awarded military occupational specialty 910.00 (Medical Corpsman). 

3.  He served in Hawaii from on or about 21 September 1961 to on or about 27 May 1964.  He attained the rank/grade of private first class (PFC)/E-3.  

4.  On 5 February 1963, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order from a superior noncommissioned officer to report to training.  His punishment consisted of a reduction to pay grade E-2.  

5.  On 27 April 1963, he again accepted NJP under the provisions of Article 15 of the UCMJ for being disrespectful toward a noncommissioned officer by wrongfully using gestures.  His punishment consisted of a reduction to pay grade E-1, a forfeiture of pay, and extra duty and restriction (suspended). 
6.  On 19 August 1963, he was convicted by a special court-martial of one specification of wrongfully disobeying a lawful order from a noncommissioned officer to get into formation.  The court sentenced him to a forfeiture of pay for 
4 months, reduction to pay grade E-1, and confinement at hard labor for 
4 months.  The convening authority approved his sentence on 19 August 1963.  

7.  On 27 March 1964, the applicant's immediate commander notified the applicant of his intent to process him for elimination under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Inaptitude or Unsuitability) by reason of unsuitability (apathy, defective attitude, and inability to expend effort constructively).  The immediate commander stated the applicant:

* had been transferred to three different companies, three different line platoons, four different squads, and four different teams, with 11 different supervisors
* he had a record of company punishment in each company for either disobedience or disrespect 
* he had been given more than ample opportunity to Soldier and to show that he was not a victim of persecution 
* he was given every conceivable chance, but he violated the UCMJ 9 times 
* the complete efforts of the chaplain, medical, and psychological facilities, coupled with UCMJ action were met with no success 

8.  On 3 April 1964, the applicant underwent a mental status evaluation.  A Mental Hygiene Consultation Service Certificate shows he was considered to be mentally responsible, able to distinguish right from wrong, and had the capacity to understand and participate in board proceedings.  He had no disqualifying mental defects sufficient to warrant disposition through medical channels.  There was no psychosis, neurosis, organic brain syndrome, or mental deficiency found. His diagnosis was that of passive aggressive reaction.  His separation was recommended.  

9.  On 10 April 1964, the applicant acknowledged receipt of the notification memorandum to separate him for unsuitability.  He acknowledged that he had been counseled and advised of the basis for the contemplated separation action and he was afforded the opportunity to request counsel but declined.  He further waived consideration of his case by a board of officers and elected not to submit a statement on his own behalf.  He indicated he fully understood that if the discharge authority approved the recommendation for discharge, the discharge authority would determine the type of discharge he would receive.  He finally elected not submit a statement on his own behalf and indicated he voluntarily signed this acknowledgement of his own free will. 

10.  On 10 April 1964, he was again convicted by a special court-martial of one specification of willfully disobeying a lawful order from a noncommissioned officer to go directly to the dental clinic and return and not to enter the Taro Inn.  The court sentenced him to confinement at hard labor for 4 months and a forfeiture of pay for 4 months.  The convening authority approved his sentence on 28 April 1964.   

11.  On 11 April 1964, a board of officers recommended his discharge from the service by reason of unsuitability (apathy, defective attitude, and inability to expend effort constructively) with the issuance of a General Discharge Certificate. 

12.  Also on 11 April 1964, having determined that the applicant was unsuitable for further military service, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-209 by reason of unsuitability and directed that he be furnished a General Discharge Certificate.  

13.  On 29 April 1964, his chain of command initiated a Certificate of Unsuitability for Enlistment/Reenlistment (bar to reenlistment) against him.  The chain of command cited his habitual misconduct.  The applicant was furnished a copy of this bar but elected not to submit a statement in his own behalf.  The bar was ultimately approved by the approval authority. 

14.  The applicant was accordingly discharged on 3 June 1964.  The DD Form 214 he was issued shows he completed a total of 2 years, 9 months, and 
14 days of creditable active military service and he had 122 days of lost time due to being in confinement.  He was assigned separation program number (SPN) 46a (Apathy). 

15.  On 14 October 1964, the Army Discharge Review Board (ADRB) reviewed his discharge processing and found it proper and equitable.  As such, the ADRB denied his petition for an upgrade of his discharge. 

16.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  Otherwise, return to duty or referral for separation under the provisions of Army Regulation 635-208 was directed.

17.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) currently provides the policies and procedures for the separation of enlisted personnel.  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.

18.  Appendix A (Separation Program Number and Authority Governing Separations) of Army Regulation 635-5 provided for an SPN and corresponding reason for separation/discharge.  The SPN (later renamed Separation Program Designator (SPD) codes) are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPN of "46A" was the code assigned to Soldiers separated under the provisions of Army Regulation 635-209 by reason of apathy. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant’s quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of service includes failure to respond to rehabilitative efforts, several instances of NJP, two courts-martial convictions, and a bar to reenlistment.  

2.  The evidence of record clearly shows he demonstrated he could not or would not meet the acceptable standards required of enlisted personnel.  Accordingly, his immediate commander initiated separation action against him.  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.  

3.  The evidence of record also shows that his discharge was clearly based on his failure to meet acceptable standards and unsuitability for Army service.  The evidence is insufficient to show he was discharged, singled out and made to do PT, or that he was denied an opportunity to go to West Point Prep because of his religious faith.  He has provided no evidence and there is none in the available record to support these contentions. 

4.  His discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he should not receive an upgrade of his 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)                                         AR20150000198



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ABCMR Record of Proceedings (cont)                                         AR20150000198



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