PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           15 November 2001                   
	DOCKET NUMBER:   AR2001060907

	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	
	Mrs. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Stanley Kelley		Member	
	Ms. Karen A. Heinz		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, in effect, that his general discharge (GD) be upgraded to an honorable discharge (HD).

3.  The applicant states, in effect, that his company commander gave him a general discharge to get him out of the Army early.  He believes, that he should have received a medical discharge.  His body weight was 170lbs and in 2 months he went down to 124lbs.  He took the discharge because he was afraid and was intimidated by his company commander.  He was not in any other trouble.

4.  The applicant’s military records show that on 4 March 1970, was inducted in the Regular Army, for 2 years.  He completed basic combat training (BCT) and advanced individual training (AIT).  He was awarded military occupational specialty 76A10 (Supply Man).

5.  On 9 June 1970, while assigned to a unit at Fort Ord, CA., the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave from 6 to 8 June 1970.  His imposed punishment was a forfeiture of $30.00 pay per month for 2 months (suspended for 2 months), 20 days restriction and extra duty.

6.  The applicant arrived in the Republic of Vietnam on or about 28 August 
1970.  On 28 September 1970, the applicant was referred to the psychiatric clinic by his company commander for evaluation.  The applicant was diagnosed as having an immature personality.  The Psychiatrist stated, in effect, that the applicant’s judgment was impaired and that his insight was lacking.  He further stated, in effect, that the diagnosis of immature personality represents a character and behavior disorder.  He was found to be mentally able to distinguish right from wrong, to adhere to the right, and had the mental capacity to understand and participate in board and other legal proceedings.  

7.  The applicant’s medical file is not available.  The applicant records does not indicate the reason why he was referred to a psychiatric clinic.  His record also indicates his conduct and efficiency ratings as excellent during his BCT and AIT.

8.  On 2 October 1970, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212 for unsuitability.  The commander’s recommendation was based on the applicant’s character and behavior disorders.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him. He waived his right to consideration of his case by a board of officers, waived personal appearance before a board of officers, elected not to make a statement on his behalf and waived representation by counsel.

9.  On 4 October 1970, the appropriate authority approved the recommendation, waived rehabilitative requirements and directed the issuance of a discharge under the provisions of Army Regulation 635-212 for unsuitability with a General
Discharge Certificate.  The applicant departed the RVN on or about 12 October
1970.

10.  On 12 October 1970, the applicant was discharged in pay grade E-1, under the provisions of Army Regulation 635-212 for unsuitability with a discharge under honorable conditions.  He had completed 7 months and 9 days of creditable active service and he had 2 days of lost time.

11.  Army Regulation 635-212, in effect at the time set forth the basic authority for the separation of enlisted personnel.  That regulation provided in pertinent part, that commanders would separate a member when, in the commander’s judgment, it was clearly established that the member would not develop sufficiently to become a satisfactory soldier.  When separation for unsuitability a general or an honorable discharge was normally considered appropriate.  

12.  The applicant never applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

CONCLUSIONS:

1.  The applicant’s administrative separation on 12 October 1970, was accomplished in accordance with regulations then in effect.

2.  The evidence of record shows that the applicant received a NJP before arriving in the RVN.  His record also shows that his conduct and efficiency
rating as excellent.  In fact, the applicant’s company commander states in his recommendation for separation that the applicant had no previous convictions by court-martial or no prior NJPs.  His recommendation for separation under the provision of Army Regulation 635-212 was based solely on the recommendation of the Staff Psychiatrist.

3.  The applicant was discharged because of his unsuitability for military service due to the diagnosis of immature personality which represents a character and behavior disorder and not for misconduct.  

4.  At the time of his separation the regulation in effect provided that the appropriate authority could approve issuance of a GD or an HD.  

5.  The Board believes that the discharge under honorable conditions was too harsh given the facts of the case.  The Board also believes that it would be fair and just to upgrade the applicant’s discharge to an HD.
6.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated from the service with an Honorable Discharge Certificate on 12 October 1970.

2.  That the Department of the Army issue to him an Honorable Discharge Certificate from the Army of the United States, dated 12 October 1970, in lieu of the general discharge of the same date now held by him.

BOARD VOTE:

__inw___  __sk____  __kah___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Irene N. Wheelwright
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001060907	
SUFFIX		
RECON		
DATE BOARDED	20011115	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19701012	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	144.4000	
2.		
3.		
4.		
5.		
6.