IN THE CASE OF:	  

		BOARD DATE:	  8 November 2012

		DOCKET NUMBER:  AR20120008806 


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 his undesirable discharge (UD) be upgrade to a general discharge (GD).

2.  The applicant states he did not deserve the type of discharge he received.  He requests an upgrade "Because of my health."

3.  The applicant provides no supporting documentation.

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 30 July 1971, completed training, and was awarded the military occupational specialty 11E (Armor Crewman).  He was assigned duty in Germany.  
3.  The applicant received nonjudicial punishment (NJP), on 22 February 1972, for absenting himself from his place of duty.

4.  Except for a mental status examination, a physical examination, and statements from his chain of command, the record does not contain the discharge processing documentation. 

5.  Neither the mental health examination nor the physical examination found any abnormalities or defects.

6.  His platoon leader submitted a statement stating the applicant had been assigned to the unit for one month.  During that time, he was a habitual complainer, generally uncooperative, failed to meet personal appearance standards, and failed to keep his living area clean.  On one occasion he was found to have been "so spaced out" as to be unable to function properly and was found to have prohibited drugs in his possession.

7.  His company commander stated the applicant's performance of duty was poor and he required constant supervision.  He had been counseled on several occasions about his duty performance, attitude, personal hygiene, and maintaining his living space.  He had been picked-up by the military police for being in an unauthorized area during an exercise.  He had been found to have been using illegal drugs, had caused an accident with the unauthorized use of a government vehicle, leaving the scene of an accident, and to have been carrying a concealed weapon.  He received a transfer to a line unit only to refuse to work with his assigned platoon leader or follow the orders of his company commander.

8.  On 8 August 1972, the applicant was discharged, with a UD, under the provisions of Army Regulation 635-212 and given a Separation Program Number of 28B (unfitness, commission of frequent involvement of a discreditable nature with civilian or military authorities).  He had 1 year and 9 days of creditable service with no recorded lost time.

9.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

10.  Army Regulation 635-212, in effect at the time set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, for the separation of individuals determined to be unfit for further service by reason of frequent incidents of a discreditable nature with civil or military authorities.  Under this regulation and paragraph the appropriate authority could approve an honorable, a general discharge or a UD.

11.  Army Regulation 635-200 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.

12.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The regulation governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulation unless the applicant can provide evidence to overcome that presumption.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type and character of the discharge is commensurate with his overall record.

3.  Any health problems the applicant is currently suffering from have no bearing on the misconduct the resulted in his discharge 40 years ago.

4.  The record does not contain and the applicant has failed to provide any evidence to support his contention that he did not deserve the type of discharge he received.

5.  The mere passage of time is insufficient in and of itself to warrant a change of the applicant's discharge, especially in light of the fact that his military record is devoid of significant service.

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)                                         AR20120008806





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ABCMR Record of Proceedings (cont)                                         AR20120008806



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