IN THE CASE OF:	  

		BOARD DATE:	  31 May 2012

		DOCKET NUMBER:  AR20110023965 


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 undesirable discharge to general under honorable conditions.

2.  The applicant states he needs his discharge upgraded because he is in need of medical care and the issuance of a Department of Veterans Affairs (VA) identification card.  He has been discharged for 40 years now and it is enough.  His discharge should be upgraded to general under honorable conditions as he believes he has earned an upgrade in the past 40 years.

3.  The applicant provides no additional evidence.

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's records show he enlisted in the Regular Army on 7 July 1969 and he held military occupational specialty 11E (Armor Crewman).

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on:

* 18 December 1969, for wrongfully falsifying a DD Form 689 (Individual Sick Slip) with the intent to deceive
* 30 November 1970, for failing to go to his appointed place of duty
* 6 July 1970, for being absent without leave (AWOL) from 29 June to 2 July 1970
* 16 February 1971, for being AWOL from 11 to 12 February 1971

4.  On 18 March 1971, he underwent a psychiatric evaluation.  The examining psychiatrist stated the applicant's past psychosocial history showed he had a tendency to approach problems in an impulsive and immature style.  The examining psychiatrist determined the applicant had no psychosis or neurosis and cleared him for any administrative action deemed appropriate by the command.

5.  On 13 May 1971, he was convicted by a summary court-martial of one specification of leaving his guard post before being properly relieved.

6.  On 28 June 1971, he received NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty on three separate occasions.

7.  On 28 June 1971, a bar to reenlistment was imposed against him.  His immediate commander stated the applicant had demonstrated little desire to perform as a Soldier and that his disrespect for military instructions and discipline had an adverse effect on the order and discipline of the unit.

8.  On 7 September 1971, he received NJP under the provisions of Article 15, UCMJ, for leaving his place of duty without proper authority and for failing to go to his appointed place of duty on two separate occasions.

9.  On 30 September 1971, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness.  His commander stated the action was a result of the applicant's continued disrespect for military orders, regulations, and his demonstrated lack of desire to improve.

10.  On 30 September 1971, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-212 for unfitness.  In the request, the commander stated the discharge action was recommended as a result of the applicant's frequent incidents of a discreditable nature with military authorities and his established pattern of shirking.

11.  On 5 October 1971, he consulted with legal counsel who advised him of the basis for the contemplated separation action and of the procedures and rights available to him.  He acknowledged he understood if he were issued an undesirable discharge under other than honorable conditions he could expect to encounter considerable prejudice in civilian life and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result.  He waived consideration of his case before a board of officers and elected not to submit a statement on his own behalf.

12.  On 6 and 7 October 1971, respectively, his intermediate and his senior commanders recommended approval of the separation action with the issuance of an Undesirable Discharge Certificate.

13.  On 2 November 1971, the separation authority approved his separation under the provisions of Army Regulation 635-212 for unfitness and directed the issuance of an Undesirable Discharge Certificate.

14.  On 10 November 1971, he was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged under the provisions of Army Regulation 
635-212 for unfitness with his service characterized as under conditions other than honorable.  He completed 2 years, 4 months, and 2 days of creditable active service with 2 days of lost time.

15.  On 26 September 1974 and 4 October 1976, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and determined his discharge was both proper and equitable.

16.  Army Regulation 635-212, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when it was clearly established that despite attempts to develop him as a satisfactory Soldier, further effort was unlikely to succeed, rehabilitation was impracticable, and the individual was not amenable to rehabilitation.  This regulation prescribed that an individual discharged for unfitness would be furnished an undesirable discharge, except when an honorable or a general discharge was warranted by the particular circumstances.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

18.  Army Regulation 635-200, 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 evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on five occasions for falsifying a sick slip, failing to report to his appointed place of duty on numerous occasions, and being AWOL on two occasions, and his court-martial conviction for leaving his guard post without being properly relieved.  Accordingly, his immediate commander initiated separation action against him for unfitness under the provisions of Army Regulation 635-212.

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.

3.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an individual eligible for VA or other veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable or 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 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)                                         AR20110023965



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ABCMR Record of Proceedings (cont)                                         AR20110023965



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