BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120019527 


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 to an honorable discharge.  

2.  The applicant states:

* he was unable to adjust to military life 
* he went absent without leave (AWOL), but he felt guilty so he always returned to military control
* after completing basic training, he broke his foot and has been to five specialists
* he now has emphysema

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* page one of a two-page self-authored statement
* a memorandum, Subject:  History Radiculopathy

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's complete military records are not available for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed his records were lost or destroyed in that fire.  

3.  The applicant was inducted into the Army of the United States on 5 March 1969.  

4.  On 9 December 1969, the Mental Hygiene Consultation Service, Fort Gordon, GA, psychiatrically cleared the applicant for any administrative actions deemed necessary by his chain of command.

5.  On 11 December 1969, the applicant's immediate commander advised him that he was recommending that he be separated under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.

6.  His separation packet contained a statement, dated 12 December 1969, which stated that the applicant's record disclosed he received punishment under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) during the period 8 to 10 July 1969 and on 22 October 1969.

7.  On 12 December 1969, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of Army Regulation 635-212 for unfitness.  The applicant waived consideration of his case by a board of officers and waived a personal appearance.  The applicant indicated he was submitting statements in his own behalf and that he waived representation by counsel.  The applicant acknowledged that he understood as a result of the issuance of an undesirable discharge he could expect to encounter substantial prejudice in civilian life, that   he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.
8.  On the same date, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-212 for unfitness with an Undesirable Discharge Certificate.  The applicant's immediate commander stated the discharge was being recommended due to the applicant's trial and conviction by a special court-martial for violation of Article 86, being AWOL, and as a result of him receiving two Article 15's for violation of Article 86.  

9.  On 15 December 1969, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 due to unfitness with the issuance of an Undesirable Discharge Certificate.  On 24 December 1969, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed 7 months of active service with 81 days of lost time.

10.  There is no indication the applicant’s applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statute of limitations.  

11.  There is no evidence in the applicant’s records that show he was treated for injuries during his period of active service that would have been a direct cause of his indiscipline.

12.  He submitted one page of a two-page memorandum, subject:  History Radiculopathy, dated 14 April 2010, which discusses the results of a magnetic resonance imaging of the lumbar spine.  It states he has multilevel degenerative disease, a central disc bulge, and moderate left paracenteral.

13.  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 stated an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) 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.

14.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for 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 meets 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's record shows he received two Article 15s and one special court-martial conviction.  The evidence of record shows 86 days of lost time due to being AWOL.  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.

2.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-212, for unfitness.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

3.  The applicant contends that he broke his foot while in basic training.  However, the available record does not support this contention and the medical document that he provided, dated 14 November 2010, provides no evidence of an injury that occurred during basic training.  

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

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)                                         AR20120019527



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ABCMR Record of Proceedings (cont)                                         AR20120019527



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