IN THE CASE OF: BOARD DATE: 1 December 2009 DOCKET NUMBER: AR20090011045 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his discharge be upgraded. 2. The applicant states, in effect, that he was not able to prove his age and that he was released from active duty without a proper hearing. 3. The applicant does not provide any supporting documents or evidence in support of his application. CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 21 July 1954 for a period of 3 years at the age of 17. He completed basic and advanced individual training and was awarded a military occupational specialty in the Medical Service Corps as a Medical Corpsman. The applicant's initial enlistment contract and its supporting documents are not available for the Board's review. The source document used is the applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States). 3. The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform of Military Justice (UCMJ) on eight separate occasions for failure to repair, failure to go at the time prescribed to his appointed place of duty, and for breaking restriction. His record also shows he was convicted by two summary and one special courts-martial for breaking restriction, failure to go to his appointed place of duty, dereliction of duty, and for being absent without authority. 4. On 16 March 1956, the applicant's company commander recommended a board of officers be convened to consider separating the applicant for unfitness. In his letter, the company commander stated the applicant had been disciplined under the provisions of Article 15, UCMJ, on eight separate occasions and he was convicted by two summary and one special courts-martial. He stated that the applicant did not respond to counseling or punishment and was beyond rehabilitation for potential use in the Army. He concluded by stating the applicant's conduct and efficiency ratings were unsatisfactory. The applicant's intermediate commander recommended approval. 5. On 3 April 1956, a board of officers convened to determine and recommend whether the applicant should be separated for unfitness under the provisions of Army Regulation 615-368 (Enlisted Personnel, Discharge, Unfitness) due to repeated acts of misconduct. The applicant was personally present during all open sessions, he was advised of his rights and allowed to cross-examine witnesses, and he had a defense counsel represent him at the proceedings. During the proceedings, he stated that he understood his rights. 6. The separation board proceedings show that the applicant testified before the board of officers. In his testimony, he stated, in effect, that he joined the Army when he was 17 years old and that he wanted to be an airborne Infantryman or in the Military Police Corps, instead he was trained in the Medical Corps. He states he did everything he could to fail the medical specialty exams. He further stated that he had difficulty with basic training, medical specialty training, and working on hospital wards. He stated he could not get along with his instructors and that he had difficulty taking orders from women. He concluded by saying he could be a better Soldier if he was transferred to a line unit. 7. After considering all the evidences and witness statements presented before it, the board of officers recommended the applicant be discharged from military service under the provisions of Army Regulation 615-368 for unfitness. By majority vote, the board recommended the applicant be issued an Undesirable Discharge. 8. The general court-martial convening authority approved the findings of the board on 19 April 1956. 9. On 22 May 1956, the applicant underwent a separation physical. The medical examination report shows that he had an emotional instability reaction under the psychiatric clinical evaluation standards. The examining medical doctor determined that the applicant was qualified for separation. 10. Accordingly, on 23 May 1956 the applicant was discharged. He was 18 years and 10 months old. The authority and reason for discharge shown on his DD Form 214 is Army Regulation 615-368. The applicant had completed 1 year, 7 months, and 12 days of active service. The applicant's character of service was under other than honorable conditions. 11. The applicant's DD Form 214 shows he had 82 days of time lost under Section 6a of Appendix 2b of the Manual for Courts-Martial, dated 1951. 12. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 13. Section 6a of appendix 2b of the Manual for Courts-Martial, dated 1951, stated that a Soldier who deserts is absent from his organization, station, or duty for more than 1 day without proper authority, as determined by competent authority; is confined by military or civilian authorities for more than 1 day in connection with a trial, whether before, during, or after the trial; is unable for more than 1 day, as determined by competent authority, to perform his duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from his misconduct; is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted. 14. Army Regulation 615-368, in effect at the time, set forth the procedures and authority for the separation of enlisted personnel for unfitness. Paragraph 1 of the regulation provided, in pertinent part, that individuals who demonstrated they were totally unfit for further retention in the military service due to misconduct were subject to separation for unfitness. The regulation provided that the individual's commander would report the facts to the next higher commander and recommend that the individual appear before a board of officers. The commander exercising general court-martial authority jurisdiction convened this board of officers. The board of officers could recommend the individual be discharged for unfitness, discharged for unsuitability, or retained in the service. This regulation further provided that when an individual was discharged for unfitness an Undesirable Discharge Certificate would be issued. 15. Army Regulation 635-200 (Personnel Separation), paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The evidence of record does show that the applicant was 17 years old at the time of his initial enlistment into the U.S. Army. However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 2. The applicant also contends that he did not get a proper hearing prior to his separation. The evidence of record shows that he was present during all open sessions of his board of officers, that he consulted with counsel, that witnesses were cross-examined, and that he personally appeared as a respondent during the Board. Therefore, the applicant's contention that he did not have a proper hearing is without merit. 3. The applicant's record of service included eight nonjudicial punishments, two summary and one special courts-martial convictions, and 82 days of lost time. The applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. The extent of the applicant's misconduct also renders his service unsatisfactory. Therefore, he is not entitled to either a general discharge or an honorable discharge. 4. 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. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case. 5. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board 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. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X____ ____X__ ___X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________X_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20090011045 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090011045 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1