IN THE CASE OF:	  

		BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120005664 


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 (UD).  

2.  The applicant states he is being denied benefits by the Department of Veterans Affairs (VA) as a result of his discharge.  

3.  The applicant provides no documentary evidence in support of his request. 

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 was inducted into the Army of the United States on 9 December 1969.  His record shows he was advanced to private/E-2 on 2 February 1970, and this is the highest rank he attained and held while serving on active duty.

3.  The applicant’s record shows the following time lost history:

	a.  On 9 March 1970 while attending advanced individual training (AIT) at 
Fort Leonard Wood, Missouri, the applicant departed absent without leave (AWOL).  He was dropped from the rolls (DFR) of the organization on 8 April 1970, and remained away for 122 days until returning to military control on 8 July 1970;

   b.  On 20 July 1970, the applicant again departed AWOL from his AIT unit.  He was DFR on 19 August 1970, and remained away for 66 days until returning to military control on 23 September 1970; and 

   c.  On 26 September 1970, the applicant again departed AWOL from his AIT unit.  He was DFR on 26 October 1970, and remained away for 43 days until returning to military control on 7 November 1970. 

4.  On 7 December 1970, the unit commander notified the applicant of his intent to recommend his discharge under the provisions of Army Regulation
635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness.  

5.  On 7 December 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, which included his ineligibility for many or all benefits as a veteran under both Federal and State law as result of receiving a UD.  Subsequent to receiving this legal counsel, the applicant waived his right to consideration of his case by and personal appearance before a board of officers.  He also waived his right to representation by counsel and elected not to submit a statement in his own behalf.  

6.  On 6 January 1971, the unit commander submitted a recommendation for the applicant’s discharge for unfitness under the provisions of Army Regulation 
635-212.  He cited the applicant’s antisocial personality, his established pattern of misconduct against military discipline, and his absolute refusal to adjust to military life as the basis for taking separation action.  The unit commander indicated separation for unsuitability was not considered appropriate.  He stated the applicant’s behavior was not due to incapacity to become a satisfactory Soldier within the means of unsuitability.

7.  On 22 January 1971, the separation authority approved the applicant’s discharge for unfitness and directed he receive an Undesirable Discharge Certificate.  On 29 January 1971, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed 6 months and 5 days of creditable active service with 231 days of time lost due to AWOL.

8.  On 28 July 1981, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s military records and all other available evidence, determined the applicant’s discharge was proper and equitable and voted unanimously to deny the applicant’s request for an upgrade of his discharge. 

9.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  The separation authority could authorize a general discharge under honorable conditions or an honorable discharge if warranted by the member's record of service.  However, when separation for unfitness was warranted, a UD was normally considered appropriate.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority 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 upgrade of his UD because he is being denied benefits by the VA has been carefully considered.  However, by law and regulation, denial of benefits is not a basis to support a discharge upgrade. 

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the regulation in effect at the time.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant achievement.  However, it does reveal an extensive disciplinary history that includes his accrual of 231 days of time lost due to AWOL while still in training.  Given the applicant’s undistinguished record of service and his extensive record of misconduct, the undesirable discharge he received accurately reflects the overall quality of his service which did not support the issuance of an honorable discharge or a general discharge at the time of his discharge and does not support an upgrade now.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.  

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)                                         AR20120005664



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120005664



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1