IN THE CASE OF:	  

		BOARD DATE:	    29 July 2010

		DOCKET NUMBER:  AR20100000911 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states that he developed a bad attitude after he was injured.  While going to parachute rigger training he ruptured his spleen and he was told he could no longer be an airborne trooper.  His attitude got worse when he was told he was too young to go to Vietnam.  He was offered a general discharge.  He had no reason to accept an undesirable discharge.  When the undesirable discharge came through he was told it would take another 6 weeks for him to receive a general discharge.

	a.  He bases his request on the following:

* his conduct and efficiency ratings were very good until he was told he couldn't jump
* his promotions were steady until after his accident
* his record indicated minor and isolated incidents
* his discharge was based on minor offenses
* his ability to serve was impaired by youth and immaturity
* his command abused its authority by giving him a bad discharge

b.  He also relates that:

* his immaturity continued until he became involved with his wife


* they have been married for 34 years [since approximately 1975]
* they have two wonderful children and four grandchildren
* he has been an upstanding citizen and parent
* he has been involved in children's athletic and scouting programs
* he regrets the decisions of his youth
* he feels he has redeemed himself
* he is proud of having been in the Airborne Artillery

c.  He also states:

* they have owned their own home for 25 years
* he has been steadily employed since 1975
* he is remorseful and apologizes for the actions of his youth
* although he has done a lot in raising his two amazing children he regrets not staying in the military

3.  The applicant provides copies of:

* a 2007 letter of recommendation as one who has shown leadership, initiative, and an exceptional work ethic
* a 2005 invitation to a going away luncheon for the applicant as one of "the most beloved employees"
* a 2004 employee evaluation and recommendation for wage increase
* a 1999 letter of recommendation
* a 1998 letter of recommendation - he had been at the company since 1986
* a 1997 letter from an insurance company loss prevention specialist, who commended the applicant on his safety policies and safety training
* a 1997 letter from his employer for his performance as the leader of the safety committee; his work resulted in "a substantial refund of insurance premium"
* a 1987 letter of recommendation
* a 1992 Certificate of Appreciation from the Cub Scouts
* a 1993 Certificate of Appreciation from the Boy Scouts of America

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, a 17-year old high school nongraduate, enlisted in the Regular Army with parental permission and with a waiver for a charge of a minor in possession of a controlled substance.  He entered active duty on 9 July 1971.  He completed basic combat and advanced individual training as an artilleryman and basic parachute training.

3.  He was assigned to the parachute rigger school at Fort Lee, VA for 2 months.  

4.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 8 February 1972 for an unknown offense.

5.  On 28 February 1972, a line of duty determination determined that he had sustained a blunt trauma injury to the abdomen when he fell while running to catch a taxi.  The injury was determined to have been incurred in the line of duty.

6.  On 3 April 1972, following a 1-month assignment at Fort Lewis, WA, he was assigned to Headquarters and Headquarters Battery, III Corps Artillery, Fort Sill, OK.

7.  He received NJP on 18 May 1972 for being absent from his place of duty on 17 May 1972.  The punishment consisted of a reduction to the rank/grade of private first class (PFC)/E-3, which was suspended for 60 days.  His suspension of reduction was vacated when the applicant was reported as being absent without leave (AWOL) on 26 May 1972.

8.  On 1 June 1972, a mental status evaluation found the applicant's behavior normal.  He was alert and fully oriented.  He displayed a level mood, clear thinking processes, normal thought content, and a good memory.  There was no impression of significant mental illness.  He was considered mentally responsible, able to distinguish right from wrong, and able to adhere to the right.  He was considered able to participate in board proceedings.  He met retention standards.

9.  On 2 June 1972, NJP was imposed for being AWOL from 26-30 May 1972.  As a result, the applicant was reduced to private (PV2)/E-2.

10.  On 2 June 1972, a psychiatric examination noted the applicant's history of misconduct extended back years prior to enlistment.  The psychiatrist provided a diagnosis of chronic, moderate, immature personality which had existed prior to service.  The applicant was mentally responsible, able to distinguish right from wrong, and able to adhere to the right.  He was capable of participating in board proceedings and he met retention standards.  Separation was recommended under the provisions of Army Regulation 635-212 (Personnel Separations -Discharge - Unfitness and Unsuitability).

11.  The applicant's commander advised him of his proposed action to affect his separation for unfitness.  On 7 June 1972 the applicant consulted with counsel and waived consideration of his case by a board of officers, personal appearance before such a board, and representation by counsel.  He also declined to submit statements in his own behalf.  He acknowledged that he understood that he could expect to encounter substantial prejudice if he were issued a general discharge.  If he were issued an undesirable discharge characterized as other than honorable he understood that he would be ineligible for many or all veteran's benefits under Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He also indicated that he understood that he could withdraw his waivers up to the date the discharge authority approves his discharge.

12.  The commander recommended elimination for unfitness with an undesirable discharge.  The elimination package contains statements from the applicant's chain of command:

   a.  A sergeant first class (SFC), the battery assistant operations sergeant, reported the following:
   
* 6 April 1972 - applicant assigned to S-3 section, was given time off until 11 April to get settled - briefed on 13 April as to duties and responsibilities - given the rest of the day off
* 17 April - received report that the applicant performance was unsatisfactory, applicant would absent himself from details for as long as two hours - he complained constantly and, "his Uniform was unclean every morning"
* 20 April - inspected section - the applicant and others were not ready for inspection - the applicant had done nearly nothing to get his uniforms and equipment into shape - some uniform items were missing - the applicant offered no explanation
* 24 April - the other men were 100 percent improved - the applicant had done nothing - he took the applicant to the first sergeant (1SG) who counseled the applicant and gave him until 1 May to get his things straightened out
* 1 May - half the applicant's uniforms were missing - applicant claimed they were at the laundry for cleaning and sewing, but could produce no laundry ticket or receipt - applicant was given until 4 May
* 4 May - the applicant was not ready for inspection - a sergeant was assigned immediate supervision until everything was ready - on 8 May the applicant was finally ready for inspection 
* 10, 15, and 17 May - the applicant reported late for work details - the SFC advised the applicant of the consequences of a less than honorable discharge - the applicant reported that he did not care
* 26-30 May - applicant was AWOL  

   b.  The 1SG reported:
   
* 24 April 1972 - the applicant had offered lack of money as the excuse for not having his uniforms in order - pay day changed nothing - the 1SG learned the applicant was living off-post and counseled him to move back onto the base to save money - the applicant said he would do so - the applicant continued to be consistently late for work and to shirk details

* 1SG concluded that the applicant would not change and had no desire to change - concluded that elimination was necessary
   
   c.  The battery commander reported:
   
* late April 1972 – 1SG brought the applicant to the commander's attention as a potential problem - 5 May (on or about) commander counseled the applicant who readily admitted he was in the wrong
* the commander took on the applicant as a personal project - he sought out the applicant for informal counseling in casual discussions on numerous occasions
* 17 May - applicant reported at 0800 hours for a 0715 work call - his response to the commander was, "so what if I was a few minutes late" - the commander imposed NJP and suspended a reduction in pay grade - the applicant assured the commander that he would change, start to Soldier, and get in no more trouble
* 30 May - in response to the applicant's 26-30 May AWOL the commander vacated the previous reduction and administered a second NJP to further reduce the applicant to pay grade E-2
* the commander concluded that rehabilitative efforts were hopeless and that elimination was necessary.

13.  The intermediate commander recommended approval and the separation authority waived any rehabilitation requirements and directed issuance of an Undesirable Discharge Certificate.

14.  On 30 June 1972, the applicant was discharged under the provisions of Army Regulation 635-212 with an undesirable discharge for unfitness by shirking.  He had completed 11 months and 18 days of creditable active service.

15.  There is no indication that applicant applied to the Army Discharge Review Board (ADRB) during its 15-year statute of limitations.

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

17.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 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 states that he developed a bad attitude after he was injured.  While going to parachute rigger training he ruptured his spleen and was told he could no longer be an airborne trooper.  His attitude got worse when he was told 

he was too young to go Vietnam.  He cites his post-service behavior and accomplishments and seeks the general discharge he originally expected.

2.  The applicant's assertions may explain his behavior but they do not justify it.  He had clearly demonstrated the capacity for honorable service by completion of training and about 7 months of service without a blemish on his record.  The counseling records show he was given extraordinary latitude to correct his behavior, yet he elected not to do so.

3.  None of the several pages of counseling records, as well as the psychiatric evaluation, mention anything about the incidents that the applicant credits with ruining his attitude.

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 therefore were appropriate considering all the facts of the case.

5.  The applicant's post-service accomplishments are noted and acknowledged, but they do not demonstrate that the discharge should be upgraded.  They demonstrate exactly what his early months of service demonstrated, that he could do what was expected of him when he chose to do so.  The post-service period furnishes no basis for recharacterization of the discharge

6.  In view of the foregoing there is no basis for granting the applicant's requested relief.

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)                                         AR20100000911



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