IN THE CASE OF:	  

		BOARD DATE:	  15 May 2012

		DOCKET NUMBER:  AR20110020319 


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 her undesirable discharge (UD), characterized as under other than honorable conditions (UOTHC), be upgraded.

2.  She states she is submitting her application in hope that her discharge will be upgraded.  

3.  She did not provide any 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.  Her record shows she completed an application for enlistment in the Women's Army Corps on 15 December 1970.  She later enlisted in the Regular Army on 
12 January 1971 for 3 years.  After completion of training, she was awarded military occupational specialty 70A (Clerk). 

3.  On 18 August 1971, she received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave during the period 3 through 16 August 1971.  

4.  A Report of Mental Status Evaluation shows she was given an examination (date not shown).  She was found to have a depressed mood with no significant mental illness.  She was psychiatrically cleared for separation under the provisions of Army Regulation 635-212 (Personnel Separations- Unfitness) and noted to have met the retention standards prescribed in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). 

5.  On 20 October 1971, the unit commander advised the applicant that she was being recommended for discharge under the provisions of Army Regulation 635-212, by reason of unfitness.  She was advised of her right to:

* present her case before a board of officers
* submit statements in her own behalf
* representation by counsel
* waive her rights in writing
* consult with counsel prior to waiving her rights

6.  The applicant acknowledged receipt of the proposed action and waived her right to have her case considered by a board of officers and a personal appearance before the board.  She stated she understood she may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to her.  She further understood that as a result of issuance of a UD, she may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that she may expect to encounter substantial prejudice in civilian life. 

7.  On 22 October 1971, her unit commander recommended the applicant be discharged under the provisions of Army Regulation 635-212 for unfitness.  The commander noted the reason for the action was the applicant's refusal to continue any duties in the Army, either at her duty section or at the company.  She had demonstrated herself to be lazy, shiftless, irresponsible, and uncooperative.  The applicant expressed wanting to return to school and despite attempts to persuade her of the disadvantages of an unfavorable discharge, she would not listen.  She was determined to leave the Army and did not care about any consequences. 

8.  The commander also noted that any efforts for further rehabilitation would be unsuccessful as the applicant expressed being unsatisfied with everything and could find no purpose in remaining in the service. 

9.  On 3 November 1971, the appropriate authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 for unfitness.  He directed the applicant be issued an Undesirable Discharge Certificate.

10.  Accordingly, on 9 November 1971, she was discharged under the provisions of Army Regulation 635-212 for unfitness.  Her DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows in Item 11c (Reason and Authority) she was given a Separation Program Number (SPN) of "386."  She had 14 days of lost time due to AWOL. 

11.  She applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge within that board's 15-year statute of limitations.  On 3 November 1978, the ADRB denied the applicant's request for an upgrade of her discharge. 

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in part, that an individual was subject to separation for unfitness because of an established pattern of shirking.  When separation for unfitness was warranted an UD was normally considered appropriate.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) states:

   a.  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.  

   b.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

14.  Army Regulation 635-5 (Separation Documents), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  It shows that the SPN of "386" was the appropriate code for individuals discharged for unfitness – established pattern of shirking.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of her UD was carefully considered; however, it is not supported by the available evidence. 

2.  The evidence of record shows her discharge was based on her established pattern of shirking, which included NJP for going AWOL.  She refused to perform her duties and expressed she wanted to leave the Army despite the negative consequences of a UD.   

3.  She was properly separated in accordance with regulations then in effect and there is no indication of procedural errors, which would have jeopardized her rights.  The type of discharge directed and the reason for discharge is appropriate considering the facts of the case.

4.  In view of the foregoing, she is not entitled to either an honorable or general discharge. 

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)                                         AR20110020319





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ABCMR Record of Proceedings (cont)                                         AR20110020319



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