IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090011185 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states that he is homeless, unable to work, and has mental conditions (paranoid schizophrenia).  He also contends that he served in Germany and was placed in solitary confinement for 90 days.

3.  The applicant provides no documentary 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 was inducted into the Army of the United States on 13 August 1969.  He successfully completed basic combat training and advanced individual training in military occupational specialty (MOS) 72B (communications center specialist).  He was later awarded MOS 94A (cook).  He arrived in Germany on 16 January 1970.
  
3.  Between 25 August 1970 and 18 May 1971, nonjudicial punishment was imposed against the applicant on six occasions for various infractions which included disobeying lawful orders, failures to repair, drunk on duty, disrespect, and violating a lawful general regulation.   

4.  The applicant was placed in pretrial confinement from 27 May 1971 to 
3 August 1971.  Records show the applicant was convicted by a special court-martial on 3 August 1971 for disrespect to an officer (no other details available). 

5.  On 11 August 1971, the applicant underwent a psychiatric evaluation and was diagnosed with an emotionally unstable personality.  He was psychiatrically cleared for any administrative action deemed necessary by his commanding officer.  It was strongly recommended that the applicant be administratively separated at the soonest possible date.  

6.  On 27 August 1971, the applicant was notified of his pending separation under the provisions of Army Regulation 635-212 for unfitness.  He consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and waived representation by counsel.  He also elected not to submit a statement on his own behalf. 

7.  The applicant’s unit commander initiated action to discharge him from the service under the provisions of Army Regulation 635-212, paragraph 6a(1), for unfitness due to shirking.  He cited that discharge was recommended because of habits and traits of character manifested by repeated commission of petty offenses and habitual shirking.  

8.  On 30 September 1971, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.

9.  The applicant was discharged on 13 October 1971 with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to an established pattern for shirking.  He had served 1 year, 10 months, and 
5 days of creditable active service with 118 days lost due to confinement (from 27 May 1971 to 3 August 1971 and from 25 August 1971 to 12 October 1971).

10.  On 30 July 1979, the Army Discharge Review Board denied the applicant's request for an honorable discharge.
11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unsuitability and unfitness.  Paragraph 6a(4) of the regulation provided that members involved in an established pattern of shirking were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7b, 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 applicant’s record of service included six nonjudicial punishments, one special court-martial conviction, and 118 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

2.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  
 
3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

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)                                         AR20090011185





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ABCMR Record of Proceedings (cont)                                         AR20090011185



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