BOARD DATE:	  31 May 2012

		DOCKET NUMBER:  AR20110022030 


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 his undesirable discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states "I am guilty of offense and I have feeling of self reproach of doing wrong."  He has learned from his past behavior and would appreciate another chance to gain access to other military related benefits.

3.  The applicant provides two personal references.

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.  He enlisted in the Regular Army on 15 July 1974 for a period of 3 years.  He did not complete advanced individual training (AIT).
3.  He accepted nonjudicial punishment (NJP) on:

* 24 September 1974 for concealing his knowledge of an aggravated assault and robbery
* 14 January 1975 for being absent from his appointed place of duty
* 23 January 1975 for failing to obey a lawful order not to have female personnel in the enlisted barracks and failing to inspect the end doors for security

4.  On 30 January 1975, he received a mental status evaluation.  The examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.

5.  On 6 February 1975, his commander recommended he be required to appear before a board of officers convened under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations) to determine if he should be discharged for frequent incidents of a discreditable nature with civil or military authorities.

	a.  He reported to the unit and started creating problems within the company. His continuous misconduct had been dealt with at all levels of the chain of command.  

	b.  He was given every opportunity to improve his performance and attitude; however, he had taken no positive action in this direction.  

	c.  He had not been considered for a rehabilitative reassignment based upon the fact that he had not shown a desire to better himself.

	d.  He was counseled on six occasions from 14 December 1974 to 
28 January 1975 for:

* being apprehended by military police for being in the women's barracks
* failure to get up at the prescribed time with other Soldiers
* substandard performance and attitude by company commander on two 	occasions
* substandard performance and attitude by the battalion commander
* missing extra duties and violating restriction on two occasions

	e.  Inasmuch as his rehabilitation and/or development into a satisfactory Soldier was deemed unlikely, it was requested the approving authority waive any requirement which may exist concerning rehabilitation by further counseling, reassignment, or both.

6.  On 6 February 1975, his commander informed him that he was recommended for elimination from the service due to an established pattern of shirking and frequent incidents of a discreditable nature with military authorities.  The commander advised him he had the right to:

* present his case before a board of officers
* submit statements in his own behalf
* be represented by counsel
* waive the above rights in writing
* withdraw any waiver of his rights before the date the discharge authority directs or approves his discharge and request that his case be presented before a board of officers

7.  On 6 February 1975, he acknowledged he had been advised by his consulting counsel of the basis for contemplated action to discharge him for unfitness.  He waived his right to:

* have his case considered by a board of officers
* a personal appearance before a board of officers
* representation by appointed counsel

8.  He acknowledged he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further acknowledged he understood that if discharged for unfitness and issued an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.  He did not submit a statement in his own behalf.

9.  On 14 February 1975, the appropriate authority waived rehabilitative reassignment, approved his discharged by reason of unfitness under the provisions of Chapter 13 of Army Regulation 635-200, and directed that he be furnished an Undesirable Discharge Certificate.

10.  On 14 February 1975, the applicant was discharged under the provisions of Chapter 13 of Army Regulation 635-200 by reason of unfitness due to frequent incidents of a discreditable nature.  He was issued an Undesirable Discharge 

Certificate.  He completed 6 months and 29 days of active service and he had 
1 day of time lost.

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

12.  He submitted two personal references that attest to his being a man of integrity, sound character, and a good friend.  He is a valuable asset to his family and community because of his positive and encouraging attitude.

13.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  

	a.  A general discharge was 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.  

	b.  Paragraph 13-5a provided for the discharge of individuals for unfitness.  Among the reasons for unfitness were frequent incidents of a discreditable nature with civil or military authorities and an established pattern for shirking.  This regulation further provided that an individual separated for unfitness would be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may have been issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in their case.

DISCUSSION AND CONCLUSIONS:

1.  At the time he was being recommended for discharge, he acknowledged that if he was discharged for unfitness and issued an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  However, he waived his right to have his case considered by a board of officers and he did not submit any statements in his behalf.

2.  The personal references were reviewed; however, post-service conduct is normally not sufficient to change a properly issued discharge issued over 30 years ago.

3.  The applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  The applicant accepted NJP on three occasions in the first 6 months of his service.  He failed to complete AIT.  This clearly shows his service to be unsatisfactory.

5.  In view of the above, there is an insufficient basis to upgrade the applicant's discharge to a 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)                                         AR20110022030



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ABCMR Record of Proceedings (cont)                                         AR20110022030



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