IN THE CASE OF:	  

		BOARD DATE:  27 September 2012

		DOCKET NUMBER:  AR20120004581 


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 an honorable discharge.

2.  The applicant states:

* he went absent without leave (AWOL) to be with his 1 year-old daughter who was unconscious from meningitis because her mother was unfit to care for her
* he wrongly stayed at home beyond his designated time to be with his child, but he notified his command and returned once she was stable
* he had an excellent record prior to his AWOL

3.  The applicant provides two letters of support. 

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.  On 1 February 1971, the applicant was inducted in the Army of the United States.  Records show he completed basic training and went AWOL prior to completing advanced individual training as a Medical Corpsman.  His record does not show he was ever awarded a military occupational specialty (MOS).

3.  On 16 June 1971, the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 30 May 1971 to on or about 10 June 1971.

4.  A medical statement, dated 15 July 1971, from the Chief, Mental Hygiene Consultation Service, Department of Psychiatry and Neurology, Brooke General Hospital, Fort Sam Houston, TX, shows the applicant was referred due to poor duty (marginal) performance, frequent sick call visits, one Article 15, and consistent test failures.  The evaluator recommended expeditious elimination from Medical Corpsman training and an MOS in the clerical field be considered.

5.  On 28 October 1971, the applicant underwent a psychological evaluation.  The evaluation shows the applicant:

* was a passive-aggressive individual who lacked motivation to continue his tour in the military
* had been in the Army for 10 months and was unable to qualify for an MOS
* had poor conscience development and weak coping mechanisms
* had gone AWOL on several occasions
* was recommended for separation

6.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a duly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 24 November 1971 under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness with a character of service of under conditions other than honorable.  He completed 8 months and 20 days of creditable active service and he had 34 days of lost time for the periods 30 May 1971 through 9 June 1971 and 25 July 1971 through 16 August 1971.  

7.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

8.  The applicant provides letters of support from his pastor stating the applicant is hopeful he can recover his veteran's benefits and from a former co-worker attesting to his character.

9.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for the separation of enlisted personnel:

	a.  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.

	b.  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 applicant's request for an upgrade of his undesirable discharge was carefully considered.

2.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.

3.  It appears his discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, his service appears to not merit an upgrade of his discharge.  In view of the foregoing, there is no basis for upgrading his character of service.

4.  The ABCMR does not grant requests for an upgrade of a discharge solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for Department of Veterans Affairs (VA) benefits should be addressed to the VA.

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)                                         AR20120004581



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ABCMR Record of Proceedings (cont)                                         AR20120004581



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