RECORD OF PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:             FEBRUARY 3, 2003                
	DOCKET NUMBER:     AR2003090649

	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. Deyon D. Battle		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Curtis L. Greenway		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 that that his general discharge be upgraded to an honorable discharge.

2.  The applicant states that his record of promotions shows that he was a good serviceman.  He states that he received an honorable discharge prior to his reenlistment and that he has also been a good citizen since his discharge.  He states that he got married, has three children and has been employed with the same company for the past 26 years.  He concludes by stating that when he was young he did a lot of partying which resulting in his receiving Article 15s for minor offenses. 

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice, which occurred on 28 February 1963.  The application submitted in this case is dated 25 March 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.  On 26 April 1960, he enlisted in the Army in Nashville, Tennessee, for 3 years in the pay grade of E-1.  He successfully completed his training as a cannoneer and he was promoted to the pay grade of E-2 on 26 August 1960.

4.  After completing 1 year, 9 months and 17 days of total active service, he was honorably discharged on 12 February 1962, for the purpose of immediate reenlistment.  Accordingly, on 13 February 1962, the applicant reenlisted in the Army for 6 years.

5.  Nonjudicial punishment (NJP) was imposed against the applicant on 16 May 1962, for misconduct.  His punishment consisted of a reduction in pay grade.

6.  On 9 June 1962, NJP was imposed against him for improper performance of guard duty.  His punishment consisted of restriction for 14 days.

7.  On 21 July 1962, NJP was imposed against the applicant for missing bed check.  His punishment consisted of restriction for 14 days.

8.  The applicant had NJP imposed against him again on 10 November 1962, for being absent without leave (AWOL) and for missing bed check.  His punishment consisted of restriction for 14 days.

9.  On 15 November 1962, the applicant was convicted by a summary court-martial of breaking restriction on 10 November and 11 November 1962.  He was sentenced to a reduction in pay grade, 20 days of hard labor and a forfeiture of pay.

10.  On 27 November 1962, NJP was imposed against him for failure to repair.  His punishment consisted of restriction for 14 days.

11.  On 10 December 1962, the applicant underwent a psychiatric evaluation.  The psychiatrist stated that during the interview, the applicant showed no insight into the seriousness of his past conduct and that he presented himself as a likable person who had extremely poor judgment.  The psychiatrist further stated that there was no evidence of psychosis or organic brain disease; that he was alert and well oriented; that his mood and affect fluctuate appropriately; and that his intellectual functioning was within normal limits.  The psychiatrist found no disease and he concluded that the applicant was characterized by a tendency to disregard the usual laws and social codes of the military.  The psychiatrist further concluded that his disregard for laws was manifested by his past history of numerous infractions, stubbornness and AWOLs and that he apparently did not profit from experiences and would undoubtedly encounter repeated difficulty.  The psychiatrist recommended that he be discharged from the service under the provisions of Army Regulation 635-209 (unsuitability), based on apathy.

12.  On 14 January 1963, NJP was imposed against the applicant for failure to repair.  His punishment consisted of restriction for 11 days.

13.  On 4 February 1963, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-209 for unsuitability.  He acknowledged receipt of the notification and he waived his right to have his case heard before a board of officers.

14.  The appropriate authority approved the recommendation for discharge on 13 February 1963.  Accordingly, on 28 February 1963, the applicant was discharged under the provisions of Army Regulation 635-209, for unsuitability.  He had completed 2 years, 10 months and 3 days of total active service and he was furnished a General Discharge Certificate.

15.  There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

16.  Army Regulation 635-209, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unsuitability.  Paragraph 3 of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of inaptitude, character and behavior disorders, apathy, enuresis, alcoholism, or homosexuality.

DISCUSSION AND CONCLUSIONS:

1. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted.  However, the evidence of record shows that he was convicted by a summary court-martial on one occasion and he had NJP imposed against him on six separate occasions.  He showed no regard for authority or the consequences of his action.  The applicant is commended on his post-service conduct.  However, his post-service conduct and the fact that he got an honorable discharge prior to his reenlistment is an insufficient basis to grant the relief requested as the period of service in question was not totally honorable. 

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 February 1963; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 27 February 1966.  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

rks_____  sac_____  clg___     _  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.  

		___Samuel A. Crumpler___
		        CHAIRPERSON

INDEX

CASE ID	AR2003090649	
SUFFIX		
RECON		
DATE BOARDED	20040203	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19630228	
DISCHARGE AUTHORITY	AR 635-209/UNSUITABILITY	
DISCHARGE REASON	547	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  560	144.4300.0000/APATHY	
2.		
3.		
4.		
5.		
6.