APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military and medical records show:

The applicant was born on 16 April 1950.  He completed 12 years of formal education.  On 10 January 1969, he enlisted in the Regular Army, in pay grade E-1, for 3 years for training in Army Career Group 11-Infantry. His Armed Forces Qualification Test score was 78 (Category II).  He completed his required training and was awarded military occupational specialty 11B10 (Light Weapons Infantryman).  He was advanced to pay grades E-2 and E-3 effective 10 May and 10 July 1969, respectively.

On 21 May 1970, while serving in Vietnam, he reenlisted, in pay grade E-3, for 3 years.  While in Vietnam, he performed duties as a Rifleman and then as a Light Truck Driver.

On 8 October 1970, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying an order from his platoon sergeant to report for detail to the unit mess hall.  His imposed punishment was reduction to pay grade E-2 (suspended for a period of 30 days), a forfeiture of $20, and extra duty for 14 days, which he did not appeal.  On 22 October 1970, the suspension of his reduction to pay grade E-2 was vacated.



On 30 October 1970, the applicant received NJP under Article 15, UCMJ, for disobeying an order from his platoon sergeant to operate a vehicle on dispatch.  His imposed punishment was a forfeiture of $24 and extra duty for 14 days, which he did not appeal.

A Psychiatric Evaluation, dated 7 December 1970, by the division psychiatrist indicated that the applicant stated that he had dropped out of junior college and joined the Army; that he had several arrests and at least five jail sentences for drunk and disorderly conduct; and that, in Vietnam, he had several Article 15’s for disobeying orders.  The psychiatrist indicated that the mental status examination revealed a fully oriented, alert, cooperative individual with normal motor behavior; that his speech was coherent; that his mood was apathetic; that his affect was appropriate; that there was no evidence of an overt thought disorder or perceptual defect; that his memory was intact; that his judgment was poor; that his insight was minimal; that his intelligence was considered to be within normal limits; that there was no evidence of drugs or alcohol present; that there was no evidence of psychosis or neurosis; that the applicant was not motivated for service and he wanted a discharge; that the applicant wanted to do as he pleased and did not care about the consequences; that the applicant had a passive aggressive personality; that the applicant was mentally responsible; that he 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; that he met the psychiatric retention standards; that there were no mental or physical defects present which were sufficient to warrant disposition through medical channels; that the applicant was psychiatrically cleared for processing for separation under Army Regulation 635-212; that the applicant was not considered to be rehabilitable for military service; and that discharge was recommended.
On 9 December 1970, a DA Form 268 (Report for Suspension of Favorable Personnel Actions) was initiated since the applicant was pending elimination under Army Regulation 635-212 for unfitness.

A statement, dated 12 January 1971, by the applicant’s commander indicates that he took command of the company on 18 October 1970; that he soon thereafter became aware of the problems of the applicant; that, although the applicant had not been in any great amount of trouble and, in fact, seemed like an intelligent individual, the applicant decided that he no longer wanted to remain in the Army; that he matter of factly stated to his platoon leader that he wanted a “212” discharge to leave the service; that he counseled the applicant and asked him if a rehabilitative transfer would help, to which he replied “no;” that he explained to the applicant the social stigma attached to such a discharge, but the applicant said he did not care, his mind was made up; that, since that time, he had attempted to process the necessary paperwork to obtain the discharge; that the applicant had slept late almost every morning and did a minimal amount of work; that further action under Article 15 seemed to have no effect on him, and instead, he had simply tried to expedite the “212;” that the division psychiatrist had agreed that the applicant should be eliminated from the service; and that, in view of the applicant’s attitudes and actions and the recommendation of the division psychiatrist, he felt that the applicant should be removed from the service under Army Regulation 635-212.

On 12 January 1971, the applicant’s commander submitted a request recommending that the applicant be required to appear before a board of officers convened under Army Regulation 635-212 for the purpose of determining whether he should be discharged before the expiration of his term of service.  The applicant’s discharge was recommended because of habits and traits of character manifested by repeated frequent incidents of a discreditable nature with military authorities.  The commander indicated that the applicant’s performance was characterized by intentional incidents of a discreditable nature with military authorities and by behavior rendering him repeatedly subject to punitive action; that his behavior was not due to an incapacity to become a satisfactory soldier with the meaning of unsuitability; that there appeared to be no grounds for other disposition of the applicant; that the applicant’s conduct and efficiency had been unsatisfactory from 22 July 1970; that the applicant had been counseled on 12 occasions; and that the applicant had been punished in his company on three separate occasions under Article 15, UCMJ.  (Note:  There is no record of the third NJP under Article 15, UCMJ, in the available records.)

On 12 January 1971, the applicant was notified by his commander that he was being considered for administrative discharge under Army Regulation 635-212 as unfit for military service, and of his rights.

On 12 January 1971, the applicant indicated that he had been advised by counsel of the basis for the contemplated action to accomplish his separation for unfitness under Army Regulation 635-212; that he waived consideration, personal appearance, and representation by counsel before a board of officers; that he was not submitting statements in his own behalf; and that he understood that, as the result of issuance of an undesirable discharge (UD) UOTHC, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

Subsequently, the intermediate commanders recommended approval and that the applicant receive an UD certificate.  On 26 January 1971, the general 
court-martial convening authority approved the applicant’s discharge under Army Regulation 635-212 by reason of unfitness.  He waived further counseling and rehabilitation requirements, and directed that the applicant be reduced to the lowest enlisted grade and receive an UD certificate.

The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates that he was discharged on 6 February 1971, in pay grade E-1, under Army Regulation 635-212, with an UD certificate (character of service UOTHC).  He had completed a total of 2 years and 24 days active military service.  He received the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and the Combat Infantryman Badge.

There is no evidence that the applicant made any effort to have the alleged error or injustice corrected prior to this application.

Army Regulation 635-212, then in effect, provided for the elimination of enlisted personnel for unfitness for frequent incidents of a discreditable nature with civil or military authorities.  An individual discharged by reason of unfitness would be furnished an honorable discharge certificate, a general discharge certificate, or an UD certificate as directed by the convening authority.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.



DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 6 February 1971, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 6 February 1974.

The application is dated 5 June 1995, and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

                      EXCUSE FAILURE TO TIMELY FILE

                      GRANT FORMAL HEARING

                      CONCUR WITH DETERMINATION




		Karl F. Schneider
		Acting Director