RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           18 December 2003                  
	DOCKET NUMBER:   AR2003090197

	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	
	Mr. Klaus P. Schumann		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Yolanda Maldonado		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he acknowledges that he experienced difficulty in adjusting to military life.  He further admits that during his two and a half years of service, his disciplinary history included his acceptance of 
non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions and four separate convictions by summary court-martial.  He claims that his problem with alcohol contributed to his inability to adjust to military life, and his disciplinary problems should have been "classified more as an administrative burden and not one of unfitness."  He further states that he believes that a decision regarding his separation was already made when the psychiatric evaluation was conducted and that the evaluation makes no mention of his drinking problems which he believes related to his mental state at the time.  

3.  The applicant further claims that he was trying to rehabilitate himself at least two months prior to the discharge board proceeding and that he was still assigned to a responsible position in the guard house during this period even though he was supposed to have had behavior problems.  He also contends that there were numerous times when he had to defend and attempt to justify who he was and where he was raised with other enlisted soldiers and noncommissioned officers (NCOs).  He concludes that he has always been concerned with this part of his adult life and requests that an upgrade to his discharge be supported at this time. 

4.  In support of his application, the applicant provides the enclosed self-authored letter, a copy of his separation document (DD Form 214) and a copy of his separation packet.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice that occurred on 3 July 1969.  The application submitted in this case is dated 20 April 2003.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.
3.  The applicant was inducted into the Army for a period of 2 years on 9 November 1959.  He completed training and was awarded military occupational specialty (MOS) 140.00 (Field Artilleryman), and he was assigned to the Republic of Korea (ROK).

4.  The record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal an extensive disciplinary history.

5.  The applicant's disciplinary record includes his acceptance of NJP on the following four separate occasions for the offense(s) indicated:  23 December 1960, drunk and disorderly; 29 July 1961, pass violation; 16 October 1961, drunk and disorderly; and 1 December 1961, failure to report for duty.

6.  The applicant was also convicted by a summary court-martial on the following four separate occasions for the offense(s) indicated:  28 April 1961, absenting himself from his compound without proper authority on 14 April 1961; 9 August 1961, failure to properly perform his duties due to previous indulgence in liquor; 27 October 1961, failure to obey a lawful order of a superior; 12 December 1961, drunk and disorderly in uniform in a public place and absent without leave (AWOL) on 11 Nov 1961.  

7.  On 21 December 1961, a psychiatric evaluation was completed on the applicant.  The examining psychiatrist found that the applicant was able to distinguish right from wrong and to adhere to the right, that he had the mental capacity to understand and participate in board proceedings and to testify on his own behalf, and that he had no physical or mental defect warranting medical separation.  The attending physician also stated that the psychiatric examination should not be the sole determinant as to the applicant's capacity for continued service and that it might be necessary to convene a board of officers before a conclusive determination could be made regarding the applicant’s suitability for continued service.

8.  On 27 December 1961, the applicant's unit commander notified the applicant that he was recommending that he be discharged under the provisions of Army Regulation 635-208, by reason of unfitness.  The applicant acknowledged this notification and indicated that he was fully aware that he may receive an UD and that he was entitled to certain rights in connection with the separation action.  The applicant completed an election of rights by requesting a hearing before a board of officers.  He further acknowledged his right to military counsel or civilian counsel at no expense to the government.

9.  On 27 December 1961, the applicant's unit commander recommended that the applicant be discharged under the provisions of Army Regulation 635-208, by reason of unfitness.  The unit commander cited the applicant's extensive disciplinary record, excessive drinking which affected his duty performance, inherent tendency to shirk his duties, and the unsuccessful attempts to rehabilitate him as reasons for taking the action.

10.  On 26 January 1962, the applicant was notified that a board of officers would 
convene on 10 February 1962, to determine his suitability for retention in the Army.  The board convened as scheduled and the applicant appeared with counsel.  The board finally recommended that the applicant receive an UD from the service because of unfitness.

11.  On 2 April 1962, the applicant was separated and received an UD under the provisions of Army Regulation 635-208, by reason of unfitness.  At the time of his discharge, he had completed a total of 2 years, 4 months, and 24 days of active military service.  

12.  The applicant's records contain a case report from the Army Discharge Review Board (ADRB).  This document shows that the applicant submitted an application to the ADRB, dated 18 February 1969, requesting an upgrade of his discharge from a UD to an HD.  The ADRB reviewed the applicant's case on 
3 July 1969, and after determining that his discharge was proper and equitable, it voted to deny his request to upgrade his discharge.  

13.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found unfit or unsuitable for further military service.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, were subject to separation for unfitness.  An UD was normally considered appropriate.

14.  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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3-year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that prior to initiating separation action, the applicant was given several opportunities for rehabilitation including reassignment within his command and non-judicial punishment, which is a form of rehabilitation.  All of these rehabilitative measures failed to motivate the applicant to change his behavior.

2.  The evidence of record further shows that the applicant was represented by counsel during the board of officers proceedings, which were conducted to determine his suitability for continued service.  The board process provided the applicant the opportunity to present any mitigating circumstances regarding the cause of his behavior.

3.  The applicant contends that a decision regarding his separation was already made when the psychiatric evaluation was conducted and that the evaluation makes no mention of his drinking problems, which he believes contributed to his behavior.  However, it was proper for his commander to request a mental health evaluation during the separation process in order to determine if there was an underlying medical or mental condition that may have caused his behavior.  In this case, the psychiatrist determined that the applicant was mentally competent and free of any personality disorder.

4.  Further, mental evaluations conducted during the separation process normally do not address specific issues considered by the psychiatrist, thus ensuring the individual's privacy.  Therefore, it is not unusual that the applicant's drinking problem was not specifically addressed in the psychiatrist's narrative.  However, this lack of comment does not mean that the applicant's drinking problem was not considered by the psychiatrist in rendering his evaluation, especially in light of the fact that evidence of record shows that the psychiatrist was fully aware that the applicant was being referred as part of the separation process.

5.  The applicant contends that there were numerous occasions when he had to defend who he was and where he was raised with enlisted soldiers and NCOs in his unit.  However, the evidence of record provides no information in regard to this situation and the applicant fails to provide independent evidence to support this claim.  

6.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service, which includes his acceptance of NJP on four separation occasions and four summary court-martial convictions in a period of less than three years.

7.  Records show the applicant exhausted his administrative remedies in this case when his case was reviewed by the ADRB on 3 July 1969.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 2 July 1972.  However, the applicant did not file within the 
3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_4.  Records show the applicant should have discovered the error or injustice now under consideration on 17 December 1967; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 16 December 1970.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ______GRANT RELIEF 

________  ________  _____  GRANT FORMAL HEARING

_JA___  __YM__  __RO___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		Raymond V. O’Connor
		   CHAIRPERSON

INDEX

CASE ID	AR2003090197	
SUFFIX		
RECON		
DATE BOARDED	2003/12/18	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19620402	
DISCHARGE AUTHORITY	AR 635-208	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. AdmDisch	144.0000.0000	
2.		
3.		
4.		
5.		
6.