IN THE CASE OF:	  

		BOARD DATE:	    3 April 2012

		DOCKET NUMBER:  AR20110021415 


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, an upgrade of his general discharge (GD) to an honorable. 

2.  The applicant states in his letter, dated 4 February 1976, that he certifies he was discharged for disability compensation of Hepatitis B and Lumbar Lordosis.  He states he is now being treated for ringing in his ears due to military activities under his physician at the Department of Veterans Administration (DVA) Center.  

3.  The applicant provides a copy of a letter, dated 4 February 1976, from the VA, and a letter from a staff physician, from the Saint Louis, VA Medical Center (VAMC), dated 8 February 2005.

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 10 November 1970.  He completed basic combat and advanced individual training and was awarded military occupation 43K (Canvas Repairman).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 28 April 1971, for being absent from Kitchen Police (KP)
* 27 September 1971, failing to go to his appointed place of duty
* 28 September 1971, for being absent without leave (AWOL) during the period 14 through 19 September 1971
* 16 November 1971, for forgery

4.  On 1 December 1971, 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 (lack of appropriated interest).  He was informed of his rights and that he would be given a physiatrist evaluation upon his written request.

5.  On 1 December 1971, the applicant underwent a mental status evaluation.  The evaluation revealed an individual with a passive aggressive behavior; he was fully alert; his mood was level, his thinking process was clear, his thought content was abnormal, and he demonstrated good memory.  The applicant was found mentally responsible and able to distinguish right from wrong, and he had the mental capacity to understand and participate in board proceedings.  His evaluation indicated that he was also evaluated by the Psychiatric Service, from 16 through 19 November 1971 and was cleared for any administration action deemed necessary by the command.

6.  On 8 December 1971, 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.  



7.  On 1 December 1971, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-212, for unsuitability, prior to the expiration of his term of service, with the issuance of a General Discharge Certificate.  He remarked the applicant's discharge was based on apathy manifested by conflict with noncommissioned officers and enlisted personnel.  He stated that the applicant's lack of motivation due to defective attitudes made him unreliable and unsuited for further military duty.

8.  On 9 December 1971, the separation authority approved the recommendation for the applicant's discharge and directed that he be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 17 December 1971.

9.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 year, 1 month, and 6 days of creditable active service with 2 days of lost time.  He was assigned a separation program number (SPN) of 46A (Unsuitability - apathy, defective attitude, and inability to expand effort constructively).

10.  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.

11.  The applicant provided a copy of a letter from the VA, dated 4 February 1976, which indicated that he was in receipt of disability compensation on account of his service connected disability.

12.  The applicant provided a copy of a letter from his staff physician, at the St. Louis, VAMC.  The physician indicated that the applicant was receiving medical care and was diagnosed with several ailments.

13.  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 when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  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.

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 argues his discharge should be changed to honorable was carefully considered and determined to be without merit.

2.  The evidence of record shows the applicant displayed a pattern of misconduct as evidenced by his three NJPs, for being absent from KP, AWOL, failure to go to his appointed place of duty, and forgery.  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 applicant's letter from the St. Louis, VAMC, was prepared after his discharge, was considered; however, it does not support an upgrade of his discharge.

4.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's 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)                                         AR20110021415



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ABCMR Record of Proceedings (cont)                                         AR20110021415



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