IN THE CASE OF:	  

		BOARD DATE:  9 October 2012

		DOCKET NUMBER:  AR20120006784


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 general discharge to honorable and a copy of his service personnel records.

2.  The applicant states:

* his wife was German which caused undue stress
* they divorced due to the stress
* he served 8 years and committed no crimes
* he needs his service personnel records to file for compensation for health reasons

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 enlisted in the Regular Army on 26 May 1959 for a period of 3 years.  He served as a heavy vehicle driver and was honorably discharged on 12 July 1961 for immediate reenlistment.  He reenlisted on 13 July 1961 for a period of 6 years.

3.  On 24 August 1964, nonjudicial punishment (NJP) was imposed against the applicant for being disrespectful.

4.  On 28 April 1965, NJP was imposed against him for being absent without leave (AWOL) from 19 to 20 March 1965.

5.  On 28 October 1966, he was convicted by a special court-martial of being AWOL from 1 July to 13 September 1966.

6.  On 1 February 1967, NJP was imposed against him for being AWOL from 29 January to 1 February 1967.

7.  On 8 June 1967, he was convicted by a special court-martial of being AWOL from 2 May to 5 June 1967.

8.  On 2 August 1967, he underwent a psychiatric examination and was diagnosed with a mild dissocial personality manifested by accruement of marital, social, and financial problems which have interfered with his performance in the military.  The psychiatrist found him to be mentally responsible.  He recommended the applicant's administrative separation from the military service.

9.  On 15 September 1967, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability.  The commander based his recommendation on the following:

* the applicant displayed a negative attitude partly due to his judgment in marriage
* he had a definite lack of appropriate interest in his duties
* he had an inability to expend effort constructively
* his duty rating was questionable due to the fact that he had been AWOL for such a great deal of time
* his comparison to other Soldiers would not even be considered on the scale of average Soldiers

10.  He consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement in his own behalf.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a discharge under conditions other than honorable were issued to him.

11.  On 6 October 1967, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

12.  He was discharged under honorable conditions on 12 October 1967 under the provisions of Army Regulation 635-212, paragraph 6(b), for unsuitability due to a character and behavior disorder.  He completed 7 years, 10 months, and 18 days of total active service with 179 days of lost time.

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

14.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and unsuitability.  Action would be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier and he met retention medical standards.  Unsuitability included inaptitude; character and behavior disorders; apathy, defective attitudes, and inability to expend effort constructively; alcoholism; and enuresis.  A general discharge under honorable conditions or an honorable discharge was considered appropriate.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a currently in effect, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was experiencing stress associated with his marital problems.  However, there is no evidence he sought assistance from his chain of command or chaplain for a way to resolve his problems within established Army procedures.

2.  He wants to file for compensation (apparently he means through the Department of Veterans Affairs (VA)) for health reasons.  However, a discharge is not changed solely for the purpose of qualifying an applicant for VA benefits.

3.  Although he contends he committed no crimes, the evidence shows his last enlistment included NJP three times, two special court-martial convictions, and 179 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an upgrade of his general discharge to an honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  As a result, the type of discharge directed and the reasons were appropriate considering all the facts of the case.

5.  His request for a copy of his service personnel records was noted.  He may obtain a copy of his service personnel records by submitting a Standard Form 180 (Request Pertaining to Military Records) to the National Records Personnel Center (Military Personnel Records), 1 Archives Drive, St. Louis, MO  63138-1002.

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20090010900



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ABCMR Record of Proceedings (cont)                                         AR20120006784



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