BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110007845 


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 he was married at the time and he went absent without leave (AWOL) because he needed to see his wife.  His chain of command told him he was not allowed to leave post and he was not going overseas because he was not trainable.  Due to these circumstances, he began to feel depressed and went AWOL.  He still has psychological problems because of this.  He states he was also told he would be able to get his discharge upgraded within 6 months.  He concludes that he has been an exemplary citizen since he was discharged; he has raised a family and maintained a job for 21 years.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 was inducted into the Army of the United States on 18 November 1971 and he was subsequently reassigned to Fort Leonard Wood, MO, for completion of training.  The highest rank/grade he attained during his period of military service was private/E-2.

3.  On 3 April 1972, he departed his training unit in an AWOL status.  He returned to military control on 17 April 1972. 

4.  On 17 April 1972, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being AWOL.

5.  On 13 July 1972, he was convicted by a special court-martial of two specifications of being AWOL from 9 to 22 May 1972 and 22 to 24 May 1972.  

6.  On 8 June 1972, he underwent a mental status evaluation and he was diagnosed as suffering from situational stress reaction, moderate.  He was found to meet retention standards.  He had/he was:

* no disqualifying mental or physical defects sufficient to warrant disposition through medical channels  
* no severe character and behavior disorder with violent tendencies, homicidal, or suicidal in nature; but it was believed he would not to be amenable to further rehabilitative efforts or have the potential to become an effective Soldier
* responsible, both to distinguish right from wrong and to adhere to the right
* he had the mental capacity to understand and participate in board proceedings
* cleared for any administrative decision deemed appropriate by his chain of command

7.  The applicant's immediate commander notified him by memorandum that he was being recommended for separation under the provisions of Army Regulation 635-212 (Personnel Separations) due to unsuitability for military service based on a lack of general adaptability and inability to learn.  His nature was characterized by apathy, defective attitude, and inability to expend effort constructively.


8.  On 14 July 1972, he acknowledged the above notification and 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.  

10.  On 2 August 1972, consistent with the chain of command's recommendations, 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, the applicant was discharged on 4 August 1972.  

11.  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 1 month and 19 days of creditable active service and he had 89 days of lost time.

12.  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.

13.  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.  



14.  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, court-martial, 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.

4.  The Army has never had a policy wherein a discharge is upgraded due to the passage of time.

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)                                         AR20110007845



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ABCMR Record of Proceedings (cont)                                         AR20110007845



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