IN THE CASE OF:	  

		BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20120005376 


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 upgrade of his undesirable discharge to a general discharge.

2.  He states he should never have been allowed to enlist because of his emotional, mental, drug, and alcohol problems.  He also states he was immature and adolescent.  He never received any treatment or counseling from the Army for these obvious problems, instead he was expeditiously given an undesirable discharge.  He states the only fair relief that he sees is for an upgrade of his discharge to a general discharge or at least a failure to adapt to the military way of life which would enable him to seek mental health assistance in counseling and continued medication upon his completion of the prison sentence he is currently serving.  

3.  He provides no additional documentary 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.  His military records show with his parents' consent he enlisted in the Regular Army on 26 July 1972 at the age of 17.  He was awarded the military occupational specialty of 12A (Pioneer).  The highest rank/grade he held was private/E-2.

3.  Two DD Forms 369 (Police Record Check) completed in conjunction with his enlistment show he had no arrest record in the city, county, or state as of July 1972.

4.  His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) on two occasions for periods of 5 and 12 days with 74 days of confinement.

5.  He accepted nonjudicial punishment on 12 January 1972 for being AWOL during the period 3 January to 8 January 1972.

6.  A DA Form 20B (Insert Sheet to DA Form 20, Record of Court-Martial Conviction) shows:

* on 20 February 1973, he was convicted by a summary court-martial of being derelict in the performance of his duties for failing to remain awake while on guard duty
* on 17 December 1973, he was convicted by a special court-martial of being absent from his place of duty on 29 October 1973 and for being AWOL during the period on or about 1 November 1973 to 13 November 1973 

7.  A mental status evaluation completed in conjunction with his discharge shows he was determined to have normal behavior.  A physical examination completed in conjunction with his discharge lists no defects or diagnoses.

8.  His military records do not contain any evidence of a mental, emotional, drug, or alcohol problems.

9.  His complete discharge packet is not contained in his records.  However, on 13 March 1974, he was discharged under the provisions of Army Regulation 
635-200 (Personnel Separations), chapter 13, with a separation program number of 28B (unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities), with issuance of a DD Form 258A (Undesirable Discharge Certificate).  The DD Form 214 he was issued shows he completed 1 year, 4 months, and 19 days of total active service with 89 days time lost.

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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 13, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit for further military service.  It provided for the separation of individuals for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally given.

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  His contention that he should never have been allowed to enlist because of his emotional, mental, drug, and alcohol problems and that he never received any treatment or counseling from the Army for these obvious problems is noted.  However, there is no evidence in his enlistment documents or other military records of his having any of these problems.

2.  His age (immaturity) at time of enlistment was also noted.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge.

3.  He was discharged under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had 89 days of time lost.  This misconduct renders his service unsatisfactory.

4.  While his discharge packet is not available, the Board starts its consideration with a presumption of regularity that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  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.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  In view of the foregoing, there is an insufficient basis for upgrading his 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)                                         AR20120005376



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120005376



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1