IN THE CASE OF:	  

		BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20090020397 


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 an upgrade of his general discharge under honorable conditions to a fully honorable discharge.  

2.  The applicant states he was discharged 27 days prior to completing his 3-year enlistment.  His commanding officer determined that he had established a pattern of immaturity, inadequate and undisciplined acts, and a negative, non-productive attitude towards the Army.  While he does not deny the allegations brought against him, there was little regard for his contributions and awards, including the "Distinguished Tank Crew" member during his service in Germany.  Additionally, the Army did not provide any corrective action other than issuing him nonjudicial punishment (NJP).  Upon leaving the Army, he dealt with substance abuse issues but has been able to overcome those issues.  He also improved his education and served as a volunteer firefighter for 15 years as well as a police commissioner of a village for 2 years.  He would like his discharge upgraded in recognition of his own efforts to remove an unwarranted blemish from his past.

3.  The applicant provides a copy of his Resume in support of his request.

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's records show he enlisted in the Regular Army for a period of 3 years on 25 June 1968 and he was trained in and awarded military occupational specialty (MOS) 51A (Engineer). The highest rank/grade he attained during his period of military service was specialist four/E-4.

3.  His records show he served in Germany in MOS 11E (Tank Gunner) from on or about 8 November 1968 to on or about 14 January 1971.  His records further show he was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).

4.  His records reveal a history of acceptance of NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 20 April 1970, for disobeying a lawful order.  His punishment consisted of 7 days of restriction and extra duty;

	b.  on 2 July 1970, for leaving his guard post without authority and failing to go to his appointed place of duty at the time prescribed.  His punishment consisted of a reduction to private first class (PFC)/E-3, 30 days of restriction and extra duty, and a forfeiture of $35.00 pay;

	c.  on 21 August 1970, for failing to go to his appointed place of duty at the time prescribed.  His punishment consisted of an oral reprimand; 

	d.  on 5 February 1971, for willfully assaulting an officer by grabbing and pulling his groin area and being found drunk while on duty as a tank crewman.  His punishment consisted of a reduction to private/E-1, a forfeiture of $90.00 pay for 2 months, 45 days of extra duty, and 30 days of restriction; and

	e.  on 22 February 1971, for failing to go to his appointed place of duty at the time prescribed.  His punishment consisted of a forfeiture of $35.00 pay.




5.  On 4 March 1971, his immediate commander initiated a Bar to Reenlistment Certificate against him citing the basis for the action was the applicant's prior misconduct.  The commander indicated that the applicant's conduct and efficiency ratings were "unsatisfactory" and that he had been counseled on numerous occasions and he was advised of the adverse consequences of his actions but this had been to no avail and rehabilitation had failed.  The applicant was furnished with a copy of this bar but he elected not to submit a statement on his own behalf.  His battalion commander ultimately approved his bar.

6.  On 9 March 1971, his immediate commander notified him by memorandum that he was being recommended for separation under the provisions of paragraph 6-b(3) of Army Regulation 635-212 (Personnel Separations) by reason of unsuitability.  The immediate commander remarked that the applicant demonstrated by his adverse and passive attitude and his substandard performance of duty to be incapable of maintaining the minimum standards.  He displayed a marked inability to sustain and interest in his job for any given duration.  He readily admitted to taking unauthorized drugs to the extent that he stayed high a good part of the time during both duty and off duty hours.  He was continuously counseled by everyone in the battalion level chain of command to no avail.  He was detrimental to the morale and welfare of the unit.  

7.  On 10 March 1971, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty at the time prescribed. His punishment consisted of a forfeiture of $20.00 pay. 

8.  On 15 March 1971, the applicant acknowledged this notification and he subsequently consulted with legal counsel regarding the pending separation action.  He was advised of its effect and the rights available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement.  He further indicated he understood that if a general discharge, under honorable conditions, was issued to him, he could expect to encounter substantial prejudice in civilian life.  

9.  On 19 March 1971, the applicant underwent a psychiatric evaluation and he was determined to have met retention standards.  The attending physician indicated that the applicant had no disqualifying physical or mental defects sufficient to warrant disposition through medical channels.  He added that the applicant was found mentally responsible both to distinguish right from wrong and to adhere to the right, and that his condition was not amenable to hospitalization, treatment, disciplinary action, training, or transfer.  He had an immature personality, passive aggressive type, manifested by difficulty with authority, impaired judgment, poor impulse control, and drug use. 
10.  The applicant's immediate commander subsequently initiated separation action against him in accordance with Army Regulation 635-212 for unsuitability. The immediate commander stated that the discharge was recommended because of the applicant established a pattern of immature, inadequate and undisciplined acts and a negative, non-productive attitude towards the Army.  He recommended that the applicant be issued a General Discharge Certificate.

11.  On 6 and 26 April 1969, his intermediate and senior commanders recommended approval with the issuance of a General Discharge Certificate.

12.  On 14 May 1971, the separation authority approved the applicant's discharge for unsuitability under the provisions of Army Regulation 635-212 and directed that he be issued a General Discharge Certificate.  Accordingly, the applicant was discharged on 29 May 1971.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he completed 2 years, 11 months, and 5 days of creditable active service.

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

14.  He provided a copy of his Resume that describes his post-service employment, education, achievements, and volunteer work. 

15.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  

16.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded.

2.  The evidence of record shows the applicant displayed a pattern of misconduct as evidenced by his multiple instances of NJP and bar to reenlistment for various infractions throughout his military service.  Accordingly, his chain of command initiated elimination action against him.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of service is commensurate with his overall record of military service.  

3.  Contrary to his argument that he was not offered much assistance, the evidence of record shows he was continuously counseled by everyone in the battalion level chain of command to no avail.  He was also advised of the adverse consequences of his actions but this had also been to no avail and rehabilitation had failed.

4.  The reason for his discharge and the characterization of service were both proper and equitable.  Further, the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, he is not entitled to an upgrade of his general discharge to fully honorable.

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)                                         AR20090020397



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ABCMR Record of Proceedings (cont)                                         AR20090020397



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