IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100019953


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 to an honorable discharge.

2.  The applicant states, in effect:

* he was young at the time he enlisted in the Army
* had his chain of command been patient with him, he would have become an outstanding Soldier, in turn becoming a better man
* his general discharge has been a severe hardship for all of his life

3.  The applicant provides no additional documentation.

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.  On 16 August 1971, the applicant enlisted in the Regular Army (RA) for 3 years, at age 23.  He completed training as a wheel vehicle repairman.

3.  The applicant’s conduct and efficiency ratings were unsatisfactory while he was in the Army.

4.  His records show that he was counseled on nine occasions between 25 April 1972 and 2 August 1972 for the following acts:

* being arrested by the military police and charged with assault with intent to inflict bodily harm
* failing to adjust to work requirements and to do the job he had been taught to do
* failing to report to the maintenance shop to inspect a vehicle for an early morning dispatch
* failing to respond to numerous counseling sessions

5.  Nonjudicial punishment was imposed against the applicant on 9 May 1972 for committing an assault upon another Soldier by striking at him with a metal folding chair.

6.  On 3 August 1972, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-212 (Discharge, Unfitness and Unsuitability), for unsuitability, due to apathy, defective attitudes and inability to expand efforts constructively.  The commander cited continuous shirking of duty manifesting in extremely poor disciplinary problems as a basis for his recommendation.  He acknowledged receipt of the notification on 4 August 1972.  After consulting with counsel, he waived his right to a psychiatric examination and to submit a statement in his own behalf.

7.  The appropriate authority approved the recommendation for discharge on 24 August 1972.  On 6 September 1972, the applicant was discharged under the provisions of Army Regulation 635-212, due to unsuitability.  He had completed 1 year and 21 days of total active service.  He received a General Discharge Certificate.

8.  The applicant’s records do not show that he ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability for apathy (lack of appropriate interest, defective attitudes, and inability to expend efforts constructively).

10.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

11.  Paragraph 3-7a of Army Regulation 635-200 (Personnel Separations) 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’s contentions have been noted.  However, they are not substantiated by the evidence of record.

2.  The evidence of record shows that the applicant was almost 24 years old at the time he enlisted in the RA.  His records show that he was counseled numerous times regarding his continuous shirking of duty and for disciplinary problems.  His records also show that his command was more than patient with him regarding his behavior.

3.  He has not shown error or injustice in the type of discharge he received as his overall record of service was not completely honorable.

4.  In view of the foregoing, his request should be denied.

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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20100019953



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