IN THE CASE OF: 

		BOARD DATE:	    6 December 2012

		DOCKET NUMBER:  AR20120007677 


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.

2.  The applicant states he was told to sign papers upon his discharge but he did not know what he was signing.  He believes he was unjustly discharged and not informed of the type of papers he was signing.

3.  The applicant provides a copy of 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 11 October 1968 for a period of 3 years.  He completed training and he was awarded military occupational specialty 05B (radio operator).

3.  Between 4 November 1969 and 31 October 1970, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant on three occasions for:

* Being derelict in the performance of his duties (fell asleep on duty)
* Being absent without leave (AWOL) for almost 3 hours
* Failing to repair (two specifications)

4.  On 18 December 1970, he was convicted by a summary court-martial of being AWOL from 12 November 1970 to 10 December 1970.

5.  On 1 February 1971, he was convicted by a summary court-martial of disobeying a lawful order.

6.  On 25 March 1971, he was convicted by a special court-martial of being disrespectful in language toward his superior commissioned officer.

7.  On 1 April 1971, charges were preferred against the applicant for assault.  Trial by special court-martial was recommended.

8.  The unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), paragraph 6b(3) for unsuitability due to apathy, defective attitude, or inability to expend effort constructively.  The commander cited the applicant's disciplinary record and AWOL periods.

9.  The applicant consulted with counsel and acknowledged he was advised of the basis for the contemplated action to separate him for unsuitability.  He waived consideration of his case by and personal appearance before a board of officers, 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.

10.  The separation authority's decision is not available for review.

11.  However, his record contains a DD Form 214 that shows he was discharged on 21 May 1971 under the provisions of Army Regulation 635-212,


paragraph 6b(3), for unsuitability due to apathy, defective attitude, or inability to expend effort constructively with an undesirable discharge.  He completed 2 years, 2 months, and 22 days of total active service with 149 days of time lost.

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

13.  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.

14.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) currently in effect, 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 contends he was told to sign papers upon his discharge but he did not know what he was signing.  However, evidence shows he consulted with counsel and acknowledged he was advised by counsel of the basis for the contemplated action to separate him for unsuitability.


2.  His record of service included three NJPs, two summary court-martial convictions, one special court-martial conviction, and 139 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  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; however, he elected not to do so.

4.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's request for 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 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)                                         AR20120007677



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ABCMR Record of Proceedings (cont)                                         AR20120007677



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