IN THE CASE OF:	  

		BOARD DATE:	    4 October 2011

		DOCKET NUMBER:  AR20110004993 


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, in effect, upgrade of his undesirable discharge.

2.  He states that he has serious mental problems and cannot think correctly.  He also maintains that he cannot sleep without having flashbacks.  He adds that he cannot keep a job and he has been in a mental institution since 1985.

3.  He provides his DD Form 214 (Report of Separation from Active Duty). 

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 enlisted in the Regular Army on 8 March 1974.  He completed training and he was awarded military occupational specialty 57E (laundry, bath, and impregnation).
3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 29 July 1974 for failing to go at the time prescribed to his appointed place of duty on 29 July 1974
* 7 November 1974 sleeping in his bed during the time he was posted as a sentinel on 30 October 1974
* 11 April 1975 for striking a commissioned officer on 2 March 1975

4.  Special Court-Martial Order Number 41, issued by Headquarters, III Corps, Fort Hood, TX, dated 27 June 1975, shows he was found guilty of causing a breach of peace by wrongfully engaging in a fight with another Soldier on 24 April 1975.  He was sentenced to reduction to the rank/grade of private (PV1)/E-1 and confinement at hard labor for 30 days.

5.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  However, his record contains a DA Form 2496 (Disposition Form) that shows on 8 July 1975, his company commander recommended his discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, by reason of unfitness for frequent incidents of a discreditable nature.  The commander stated the applicant's attitude, motivation, and potential for further training did not warrant consideration for retention in the U.S. Army.  He further stated that the applicant's stockade folder reflected several significant derogatory statements on guards and cadre; also disrespectful language, assault, disobeying lawful orders, and not complying with instructions.

6.  On 10 July 1975, he underwent a mental status evaluation.  The examining official indicated the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He had no significant mental illness and he was determined to be mentally cleared for separation.

7.  He was subsequently discharged on 12 August 1975.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1), with an Undesirable Discharge Certificate.  He completed 1 year, 2 months, and 18 days of total active service with 77 days of time lost.

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  In pertinent part, it provided for the separation of individuals for unfitness for frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an Undesirable Discharge Certificate was issued.  An honorable or general discharge may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his case.

10.  Army Regulation 635-200, 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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  Although a complete copy of the applicant's discharge packet is not available for review, the presumption of regularity must be applied.  He must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  He has failed to submit evidence that would satisfy that requirement.

2.  It is unfortunate that he now has serious mental problems and cannot keep a job.  However, the evidence of record shows that at the time of his discharge a mental evaluation was conducted that confirmed he had no significant mental illness.  The evaluation also confirmed that he was able to distinguish right from wrong and adhere to the right.

3.  His record of service included three Article 15s, a conviction by a special court-martial, and 77 days of time lost.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  As such, his misconduct renders his service as unsatisfactory.

4.  Based on 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)                                         AR20110004993



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ABCMR Record of Proceedings (cont)                                         AR20110004993



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