PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  24 May 2000
	DOCKET NUMBER:  AR1999032892

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. John M. Slone		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Mark D. Manning		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 be upgraded to honorable.

3.  The applicant states he cannot file a VA claim until his DD Form 214 is changed to honorable.  He was able to work until now but now at age 62 he needs help from the VA.

4.  The applicant’s military records show that he enlisted in the Regular Army on 3 January 1955 for a 3 year term of service.  At enlistment, the applicant was age 17 and required parental consent to enlist.  Prior to enlisting, he had been a farm hand.  His enlistment forms show that he completed the 6th grade, but in a mental hygiene interview, the applicant stated he flunked out of 4th grade in 1950.  In other documents, the applicant stated he could not read or write and his commander stated that he failed all the tests in a basic education course.  His General Technical test score was 74 which is a low score according to a later analysis by an Army psychiatrist.  After completing basic and MOS training at Fort Chaffee, Arkansas, he was assigned on 9 July 1955 to the 28th Field Artillery Battalion at Fort Carson, Colorado, as an artilleryman and later as a light vehicle driver.

5.  On 15 November 1955, he received a Special Court-Martial (SPCM) for wrongfully appropriating $26.00 from another soldier on or about 2 October 1955. He was sentenced to reduction from E-2 to E-1, confinement at hard labor for 
6 months, and forfeiture of $30.00 per month for 6 months.  His confinement was reduced to 1 month.

6.  In February 1956, according to medical records, he experienced some episodes of bed wetting and day wetting that was medically diagnosed as possible functional disorder and insecurity.  

7.  On 7 April 1956, the applicant  was given a psychiatric evaluation at the medical treatment facility.  He was diagnosed with, “passive-aggressive reaction in an individual of probable borderline intelligence characterized by recurrent episodes of stealing and negativism and that these were life long behavior patterns.  Because of confirmed pathological personality traits which are not amenable to psychiatric treatment, disciplinary or other rehabilitative measure in the military setting, further retention of this individual is regarded as detrimental to the best interests of the service.  It is recommended that a board be convened under the provisions of AR 615-638 (Discharge for Unfitness) for elimination of this individual from the service.”

8.  Based on the psychiatric evaluation, the applicant’s commander requested that he be evaluated by a board of officers to determine his fitness to remain in the service.  The commander also noted that he had failed all of the tests of the basic education course but that his conduct was satisfactory.  The commander’s record of unit punishment listed no convictions or disciplinary actions except for the SPCM for the one incident of wrongful appropriation of the $26.00.  The applicant was notified on 16 May 1956 to appear before a board on 18 May 1956 and he was provided with legal counsel.

9.  The board of officers conducted a hearing on 18 May 1956.  Witnesses testified that the applicant was not a disciplinary problem, that he was not disrespectful, but that he required constant supervision, was a poor soldier, and was not fit for military service.  They stated that he was suspected of petty thefts and stealing a field jacket but no disciplinary actions were taken.  The board of officers questioned the applicant mostly on the issue of stealing.  The applicant testified that he could not help himself from stealing minor items, that he did it before he joined the Army, and did it for the thrill.  He testified that he had only been caught once when he was convicted for wrongful appropriation of the $26.00.  He stated he had asked his unit for help to keep him from stealing.  At the conclusion of the proceedings, the board recommended that the applicant be separated for unfitness because of his previous convictions and record of unit punishment give evidence of criminalism and misconduct.  The board recommended an undesirable discharge.  The recommendation was approved by the separation authority and the applicant was so discharged on 29 May 1956 as an E-1 with 1 year, 3 months, and 27 days creditable service.

10.  Discharge for Unfitness, AR 615-368, effective October 1948, in effect at the time of the applicant’s discharge, defined unfitness to include the soldier giving evidence of habits or traits of character manifested by antisocial or amoral trend, unclean habits, petty offenses not warranting trial by court-martial, or psychopathic personality disorder or defect.

11.  Under current standards, AR 635-200, Enlisted Personnel Separations, there is not a separation for unfitness.  Such former separations now fall under Unsatisfactory Performance (Chapter 13) or Misconduct (Chapter 14).  The criteria for discharge under Unsatisfactory Performance is that, in the commander's judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier; the soldier's retention would have an adverse impact on military discipline, good order, and morale; it is likely that the soldier will be a disruptive influence in present or future duty assignments, and it is likely that the circumstances forming the basis for 

initiation of separation proceedings will continue or recur; the ability of the soldier to perform duties effectively in the future, including potential for advancement or  leadership, is unlikely.  Commanders will consider soldiers meeting the criteria above, and convicted by court-martial, but not sentenced to a punitive discharge, for administrative separation under this chapter, when the underlying misconduct and the soldier's performance warrant separation.  The recommended character of discharge under Unsatisfactory Performance is a honorable or under honorable conditions (general discharge) as warranted by their military record.

CONCLUSIONS:

1.  The applicant was discharged for unfitness with an undesirable discharge based on the board of officers recommendation that he be separated for unfitness because of his previous convictions and record of unit punishment which give evidence of criminalism and misconduct.  This is inconsistent with the recommendation, statements, and evidence provided by the applicant’s commander which showed that he had no record of unit punishment and only one SPCM for a petty theft.  The board apparently also based much of its decision on the statements of the applicant on stealing which were largely unsubstantiated by evidence.  The board’s finding also does not properly take into account the applicant’s psychiatric evaluation of defective personality traits which are not compatible with military service.

2.  Based on the recommendation, statements, and evidence provided by applicant’s commander and the psychiatric evaluation of the applicant, under current discharge standards, the applicant would be discharged for Unsatisfactory Performance.  Further, consideration should be given to the applicant’s young age, immaturity, and level of education at the time of his service.  Considering all of the above, the applicant’s undesirable discharge is too harsh and should be upgraded to a general discharge under honorable conditions as a matter of justice and equity.  His service was not meritorious enough nor was his conduct and efficiency exemplary enough to warrant upgrade of his discharge to an honorable discharge.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected for the individual concerned by voiding his undesirable discharge and showing that he was discharged with a general discharge under honorable conditions by reason of Secretarial Authority.

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

BOARD VOTE:  

__JS__  __MW___  ___MM___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__ John M. Slone ____
		        CHAIRPERSON

INDEX

CASE ID	AR1999032892	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000524	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.