PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           13 March 2001                   
	DOCKET NUMBER:   AR2000048069

	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. Carl W. S. Chun		Director	
	Ms. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Donald P. Hupman		Member	
	Mr. John T. Meixell		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 undesirable discharge (UD) be upgraded to an honorable discharge.

3.  The applicant states that at the time of his misconduct, his mental and emotional state was such that it impaired his judgment and he overreacted to what he considered to be a threat against his life.  In support of his application, he submitted a statement in his own behalf, character references, and a copy of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge.

4.  The applicant’s military records show that he was inducted on 26 July 1967 into the Army of the United States for a period of 2 years.  Following completion of all military training, the applicant was awarded military occupational specialty (MOS) 11B, Light Weapons Infantryman, and was assigned to the Republic of Vietnam as his first permanent duty station.

5.  On 1 May 1968, the applicant was promoted to specialist/E-4.

6.  On 22 August 1968, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for wrongfully engaging in a fight in the barracks.  His punishment consisted of reduction in rank to private first class/E-3 and 14 days of restriction and extra duty.

7.  On 5 October 1968, the applicant was found guilty by a special court-martial of being incapacitated for duty, striking a noncommissioned officer (NCO), disobeying an order, being disrespectful in language, and assault.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $45.00 pay per month for 3 months.  He was transferred to the US Army - Vietnam (USARV) Installation Stockade in Long Binh.

8.  On 23 October 1968, while in confinement, separation action was initiated against the applicant for unsuitability under the provisions of Army Regulation (AR) 635-212.  As a part of that process, the applicant underwent a psychiatric evaluation.  At the time of the evaluation, he was 21 years old, with 14 months of active duty service and 9 months of service in Vietnam.

9.  The psychiatric evaluation noted that the applicant had a disturbed background - his parents divorced when he was 2 years old; he was shuffled back and forth between grandparents in an unstable environment; and he had a history of hot-headedness and explosive outbursts.  In between the outburst, the applicant could function rather well and appeared quite amiable, but these fluctuations in emotional attitudes distorted his judgment under stress.  It was also noted that he had an Armed Forces Qualification Test (AFQT) score of 13, mental category IV.  The applicant was diagnosed with "Emotional Instability, chronic severe, . . . [not] in the Line of Duty, not due to his own misconduct.  EPTS [existed prior to service]."  He was found to meet retention standards and to have no psychiatric disease warranting disposition through medical channels.  He was found mentally responsible, able to distinguish right from wrong and adhere to the right.  He was cleared for separation processing; however, on 2 November 1968, the sentence to confinement was suspended for 6 months.

10.  On 7 November 1968, the suspension of confinement was vacated and, on 8 November 1968, the Criminal Investigation Division referred the applicant for a psychiatric evaluation in connection with his alleged assault on a guard.  The applicant stated that he was angry for being returned to the stockade, felt that his unit was not treating him fairly, and thought that the guard was harassing him.  The applicant further stated he grabbed a pair of scissors to scare the guard.  The psychiatrist again recommended that the applicant be expeditiously discharged under the provisions of AR 635-212, stating that the applicant was not suitable for continued retention in the military.

11.  The applicant was held in confinement from 7 November 1968 to 9 January 1969.  On 10 January 1969, the unexecuted portion of the applicant’s sentence to confinement at hard labor for 6 months was suspended for 1 month.

12.  The applicant’s separation documents under the provisions of AR 635-212 are not in the file.  However, the applicant’s DD Form 214 shows that he was discharged under the provisions of AR 635-212 for unsuitability due to apathy, a defective attitude, and an inability to expend effort constructively.  He was discharged on 13 January 1969 with a UD after completing 1 year, 2 months, and 9 days of active military service and accruing 99 days of lost time.  He was credited with the National Defense Service Medal, Vietnam Campaign Medal, Vietnam Service Medal, and Combat Infantryman Badge.

13.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, that individuals with apathetic, defective attitudes and an inability to expand effort constructively, as well as personnel with character and behavior disorders, and disorders of intelligence as determined by medical authority, would be discharged for unsuitability.  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.

CONCLUSIONS:

1.  The evidence of record indicates the applicant was separated for unsuitability due to apathy, a defective attitude, and an inability to expend effort constructively.  The worst characterization of service he could have received was general, under honorable conditions; however, the applicant was issued a UD.
2.  The applicant's numerous indisciplines and his overall poor service record do not warrant an upgrade of his discharge to fully honorable.  His emotional problems at the time are not considered sufficiently mitigating to warrant an upgrade to fully honorable.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by voiding the UD issued to the individual concerned on 13 January 1969 and by showing that he was separated from the service with a General Discharge Certificate on 13 January 1969 under the provisions of AR 635-212 for unsuitability.

2.  That the Department of the Army issue to the individual concerned a new DD Form 214 and a General Discharge Certificate from the Army of the United States, dated 13 January 1969, in lieu of the undesirable discharge of the same date now held by him.

3.  That so much of the application as is in excess of the foregoing is denied.

BOARD VOTE:  

__jh____  __dph____  __jtm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____June Hajjar_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000048069	
SUFFIX		
RECON		
DATE BOARDED	20010313	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19690113	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	A40.00	
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY	DASA	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.