IN THE CASE OF: 

		BOARD DATE:	      6 November 2012

		DOCKET NUMBER:  AR20120007798 


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.

2.  He states he feels he should be granted an upgrade.

3.  He provides no additional 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.  The applicant enlisted in the Regular Army on 6 May 1965.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice, on seven occasions for the following offenses:

* being absent without leave (AWOL) from 16 to 18 August 1965
* being AWOL on 13 October 1965
* failing to go at the time prescribed to his place of duty on 17 December 1966
* being AWOL from 18 to 20 February 1967
* being AWOL from 21 to 28 June 1967
* being AWOL from 1 to 17 July 1967
* being absent from his appointed place of duty on 1 February 1968

4.  His record also reveals a disciplinary history that includes three convictions by a special court-martial for the following offenses:

* failing to go at the time prescribed to his place of duty on 22 March 1967
* being absent from his unit on 28 March 1967
* breaking restriction on 28 March 1967
* being AWOL from 27 July to 4 September 1967
* being AWOL from 4 February to 25 March 1968
* disobeying a lawful command from his superior officer on 26 March 1968

5.  On 5 October 1967, the applicant underwent a psychiatric evaluation and was diagnosed as having a chronic, moderate, antisocial personality disorder  manifested by a need to act out in anger over any kind of deprivation or provocation.  The psychiatrist stated the applicant couldn't be rehabilitated to the extent he could be an effective Soldier and was a candidate for administrative separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).

6.  On 5 April 1968, he underwent a second psychiatric evaluation and was diagnosed as having a chronic, mild, immature personality manifested by impulsive behavior, poor judgment, and resentment of authority.  The psychiatrist stated it could be presumed that the applicant's longstanding character and behavior disorder described would tend to exist permanently and he recommended further action was left to judicial or command decision.

7.  The company commander's notification to the applicant of the proposed action to effect his separation from the Army under the provisions of Army Regulation 635-212 for unfitness is not available.

8.  On 16 April 1968, the applicant consulted with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and didn't submit statements in his own behalf.

9.  The separation authority waived rehabilitative transfer requirements and directed his discharge under the provisions of Army Regulation 635-212 with issuance of an Undesirable Discharge Certificate.

10.  On 1 May 1968, he was discharged under conditions other than honorable under the provisions of Army Regulation 635-212 by reason of unfitness.  He completed 2 years, 5 months, and 19 days of active military service with 187 days of lost time.

11.  His service record doesn't indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  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).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a states 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.

14.  Army Regulation 635-200, 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 administrative separation under the provisions of Army Regulation 635-212 for unfitness was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His service record shows he received seven Article 15's and three convictions by a special court-martial.

3.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable or general discharge and characterized his service as under conditions other than honorable.

4.  The evidence of record does not indicate the actions taken in the applicant's case were in error or unjust.  Therefore, there is no basis for granting his request for an upgrade of his discharge from undesirable to an honorable or 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 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)                                         AR20120007798



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ABCMR Record of Proceedings (cont)                                         AR20120007798



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