IN THE CASE OF:	  

		BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090021790 


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, in effect, his discharge should be upgraded.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 3 May 1968.

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 24 October 1967 and he was subsequently reassigned to Fort Gordon, GA, for completion of training.  The highest rank/grade he attained during his period of military service was private/E-2.

3.  On 7 March 1968, he departed his training unit in an absent without leave (AWOL) status.  He returned on 28 March 1968.

4.  On 1 April 1968, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being AWOL.  His punishment consisted of a reduction, a forfeiture, and restriction.

5.  His records reveal a history of counseling by various members of his chain of command as well as a rehabilitative transfer within training companies.  

6.  On 5 April 1968, he underwent a mental status evaluation where he was found to have an emotionally chronic and severe unstable personality.  He did not have a mental condition which would have warranted consideration for treatment, hospitalization, or other disposition by medical channels.  The military psychiatrist recommended his administrative discharge.

7.  On 13 April 1968, his immediate commander notified him by memorandum that he was being recommended for separation under the provisions of Army Regulation 635-212 (Personnel Separations) by reason of unsuitability for military service due to apathy and complete lack of respect for disciplinary action and military authority.

8.  On 13 April 1968, he acknowledged this notification.  On 15 April 1968, 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 if a general discharge, under honorable conditions, was issued to him, he could expect to encounter substantial prejudice in civilian life.  

9.  The applicant's immediate commander subsequently initiated separation action against him in accordance with Army Regulation 635-212 for unsuitability with a General Discharge Certificate.  The immediate commander stated that the discharge was recommended because past disciplinary action and command counseling had not assisted in the applicant in rehabilitation.  


10.  On 20 April 1968, his intermediate and senior commanders recommended approval with the issuance of a General Discharge Certificate.

11.  On 22 April 1968, the separation authority approved his discharge for unsuitability under the provisions of Army Regulation 635-212 and directed that he be issued a General Discharge Certificate.  Accordingly, he was discharged on 3 May 1968.  

12.  The applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212 by reason of unsuitability and issued a general discharge.  He had completed 5 months and 19 days of creditable active service and he had 21 days of lost time.

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.  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.  

15.  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 AWOL offense and NJP action.  He was counseled repeatedly by his chain of command but counseling did not assist in his rehabilitation.  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.  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)                                         AR20090021790



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ABCMR Record of Proceedings (cont)                                         AR20090021790



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