IN THE CASE OF:	

		BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110006248 


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, that his undesirable discharge be upgraded to honorable.

2.  The applicant states he had emotional problems because he was not taking thyroid medicines while on active duty.

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 22 June 1972, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 52B (Power Generator Equipment Operator).
3.  On 24 October 1972, the applicant accepted nonjudicial punishment for possession of marijuana.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was absent without leave from 16 January to 27 May 1973.

5.  On 29 May 1973, the applicant was confined at the Personnel Control Facility at Fort Sill, Oklahoma.  On 25 July 1973, he was transferred to the Retraining Brigade at Fort Riley, Kansas.

6.  An undated DA Form 3322 (Report of Mental Status Evaluation) indicates the applicant's behavior was normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.

7.  On 7 September 1973, the applicant underwent a medical examination.

	a.  A Standard Form 93 (Report of Medical History) completed by the applicant indicates he was in good health.  He did not indicate that he had any medical conditions.

	b.  A Standard Form 88 (Report of Medical Examination) indicates that the physician found the applicant to be qualified for separation.  No medical conditions or concerns were noted on the report.

8.  On or about 18 September 1973, the commander notified the applicant of his intention to separate him from the service for unfitness under the provisions of Army Regulation 635-200, chapter 13.

	a.  The commander cited the applicant's frequent incidents of a discreditable nature and deemed a discharge for unsuitability was not appropriate because his behavior was not due to any inability to satisfactorily perform within the meaning of unsuitability.

	b.  The commander stated that he applicant had received one special court- martial (copy not in available records) and that he had been sent to the Retraining Brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with an improved attitude and motivation.  However, the applicant's actions precluded accomplishment of these goals.



	c.  A listing of the applicant's discreditable acts included:

* Refusing to pull kitchen police
* Disobeying a lawful order
* Talking in formation
* Sleeping in class
* Missing formation
* Remaining in bed after prescribed wake-up time
* Failing in-ranks inspection
* Breaking restriction
* Failing to prepare for inspection
* Not participating in physical training

	d.  The commander further recommended waiver of any further counseling or rehabilitation.

9.  On 18 September 1973, the applicant consulted with counsel and elected to waive counsel and to not make a statement in his own behalf.

10.  On 25 September 1973, the appropriate authority approved the recommendation and directed that he be issued an Undesirable Discharge Certificate.

11.  Accordingly, he was discharged under conditions other than honorable on 
27 September 1973.  He had completed 6 months and 26 days of creditable active duty service and had accrued 249 days of lost time due to AWOL and confinement.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

13.  The applicant's service medical records are not available for review.

14.  Army Regulation 635-200 (Personnel Separations):

	a.  Chapter 13, applied to separation for unfitness and unsuitability.  When separation for unfitness was warranted an Undesirable Discharge Certificate was normally issued.

	b.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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.  The applicant contends that his undesirable discharge should be upgraded to honorable because he had emotional problems due to his not taking thyroid medicines while on active duty.

2.  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.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

5.  The applicant has not provided any evidence showing that his misconduct was the direct result of any medical condition.  Furthermore, there is no available evidence of record to support such contention.

6.  In view of the foregoing, the applicant's 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)                                         AR20110006248





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ABCMR Record of Proceedings (cont)                                         AR20110006248



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