PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           26 May 1999                   
	DOCKET NUMBER:   AR1999023332

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Barbara J. Ellis 		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his discharge under other than honorable conditions be upgraded to under honorable conditions.  He submits documents from his military records in support of his application.

3.  The applicant states that he was never allowed due process of appearing before a board of officers, to bring forth his complaint, or witnesses.  He was not aware of the proceedings under Article 15, UCMJ and did not sign any document refusing not to appear.  He was not afforded counseling on his rights to appeal.

4.  The applicant’s military records show that he enlisted and entered active duty on 6 December 1966.  While still in training he was punished under Article 15, UCMJ for failure to go, disobeying the order of an NCO and wearing an unclean uniform.  He was also AWOL for 9 days and was convicted by special court-martial of failure to go to his place of duty, willfully disobeying an order of a superior officer, and striking another soldier.  No record of punishment for the AWOL offense is in the available record.

5.  After 6 months the applicant was unable to complete training as a communications specialist and was reassigned to automotive parts school.  After completion of training as a clerk he was assigned to Vietnam.  While there he was punished under Article 15, UCMJ on two occasions.  Once for absence from his place of duty to avoid shipment and twice being absent from his place of duty. The record of proceedings states that he refused to sign the second document.

6.  On 23 April 1968 he was convicted by special court-martial of failure to go to his place of duty and disrespect to a commissioned officer.  On 13 July 1968 he was again convicted by special court-martial of two specifications of disobeying an order of a superior officer and five specifications of failure to go to his place of duty.

7.  A psychiatric evaluation based on a command referral for possible separation action resulted in a diagnosis of antisocial personality, chronic, severe.  The applicant was mentally responsible able to distinguish right from wrong and to adhere to the right.  There was no physical or mental defect sufficient to warrant separation through medical channels.

8.  On 15 August1968 the applicant was advised of contemplated separation action for unfitness.  A certificate prepared by an assistant staff judge advocate states that the applicant was advised of his rights and initially elected to have his case heard by a board of officers and signed the acknowledgment.  After making this election he scratched out his choices of options and his signature and stated that he would not sign any documents regarding this separation action.

9.  A board of officers convened on 3 October 1968 to determine if the applicant should be separated for unfitness.  The board proceedings state that he was present for all open sessions except one when the applicant failed to return after a short break.  Four witnesses testified for the command and the applicant testified in his own defense.  After reviewing the applicant’s record and the testimony the board of officers found that he was undesirable for further military service because of habits and traits of character manifested in repeated offenses.  It was also determined that because of habitual shirking, unwillingness to accept orders, and a gross lack of responsibility his rehabilitation was not possible.  The board recommended he be separated for unfitness with an undesirable discharge.

10.  The Division Staff Judge Advocate reviewed the proceedings and found them proper and the evidence supported separation for unfitness with an undesirable discharge.  On 10 October 1968 the battalion commander, a lieutenant colonel, approved the findings and recommendations of the board and requested expeditious separation of the applicant.

11.  On 26 October 1968 the applicant’s DD Form 214 (report of separation) shows that he was separated under other than honorable conditions under provisions of Army Regulation 635-212, paragraph 6a. for unfitness.  He had 1 year, 9 months, and 19 days creditable service and 30 days lost time.  NOTE:  Special Order 300, dated 26 October 1968, shows that the applicant was separated for unsuitability under honorable conditions.  There is no supporting documentation in the available record for this order.

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities or an established pattern of shirking.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate but required approval of an officer with general court-martial convening authority.

13.  The regulation also provided, in pertinent part, for discharge due to unsuitability because of apathy by a displayed lack of appropriate interest and/or an inability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.  An officer exercising special court-martial jurisdiction could approve a discharge for unsuitability.

14.  On 21 March 1974 the Army Discharge Review Board denied his request for an upgrade of his discharge.

CONCLUSIONS:

1.  The Board has noted the contentions of the applicant.  However, neither evidence submitted with the application nor the evidence of record supports them.  The proceedings of the board of officers were in accordance with applicable law and regulations and they appropriately characterized the applicant’s service.

2.  Notwithstanding the applicant’s poor military record of service and history of indiscipline, this Board notes some irregularities in the discharge process.  For the applicant to be discharged for unfitness with an undesirable discharge it would have to have been approved by an officer exercising general court-martial jurisdiction.  A lieutenant colonel battalion commander would not have had that authority.

3.  Additionally, the separation order and the DD Form 214 did not match.  The separation order was appropriate for the authority provided a lieutenant colonel battalion commander and the DD Form 214 followed the findings and recommendations of the Board of officers if they had been approved by a general court-martial convening authority, normally a general officer.

4.  The Board believes that it has no option but to change the applicant’s reason and authority for separation and to upgrade his discharge to under honorable conditions given all the facts in this case.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by issuing a new DD Form 214 that shows that the individual concerned was separated for unsuitability under provisions of Army Regulation 635-212, paragraph 6b. with a characterization of service of under honorable conditions.

BOARD VOTE:  

__MDM__  __AAO__  __BJE__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Mark D. Manning
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999023330	
SUFFIX		
RECON		
DATE BOARDED	19990526	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19681026	
DISCHARGE AUTHORITY	AR 635-212, PARA 6a.	
DISCHARGE REASON	A51.00	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.