IN THE CASE OF:	  

		BOARD DATE:  19 November 2013

		DOCKET NUMBER:  AR20130004898 


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 discharge under other than honorable conditions to an honorable discharge or a general discharge under honorable conditions.

2.  The applicant states he was a teenager at the time and he didn't realize the consequences of his actions.

3.  The applicant 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 28 November 1969 for a period of 3 years.  At the time he was 17 years of age and he received parental consent.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 91A (Medical Corpsman).

3.  On 5 June 1970, he was assigned to Headquarters and Headquarters Troop, 3rd Squadron, 1st Cavalry, 1st Armored Division, Fort Hood, TX.

4.  He accepted nonjudicial punishment for:

* being absent without leave on 3 August 1970
* failing to go at the time prescribed to work-call formation on 29 August 1970
* willfully destroying 14 windows of a building, a value of about $85.00, the military property of the U.S. Government

5.  On 27 November 1970, the applicant's company commander notified him that he was recommending him for separation for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  The applicant was advised of his rights and the separation procedures involved.

6.  The applicant consulted with legal counsel and was advised of the rights available to him.

	a.  He was advised he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge were issued to him.

	b.  The applicant also acknowledged he understood that he might be ineligible for many or all benefits as a veteran under both Federal and States laws if he received a discharge under other than honorable conditions and that he might expect to encounter substantial prejudice in civilian life.

	c.  He waived consideration of his case by a board of officers.  He also waived a personal appearance before an administrative separation board.

	d.  He declined to submit statements in his own behalf.

	e.  He waived representation by military counsel and/or civilian counsel at no expense to the government.

	f.  The applicant and counsel placed their signatures on the document.

7.  On 14 December 1970, the applicant was given a psychiatric examination by a psychiatrist serving in the rank of major in the Medical Corps at Fort Hood.

	a.  The doctor found no indication of psychiatric disorder, psychosis, or severe neurosis and no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.

	b.  He found the applicant was mentally responsible, was able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

	c.  The doctor recommended the applicant's separation because it was not likely that rehabilitation efforts would bring about significant changes in his attitude or behavior.

8.  On 6 January 1971, the company commander recommended the applicant's separation for unfitness under the provisions of Army Regulation 635-212 based on frequent incidents of a discreditable nature with military authorities.

9.  The intermediate commanders recommended approval of the applicant's separation from the U.S. Army.

10.  On 19 January 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 for unfitness and directed the issuance of an Undesirable Discharge Certificate.

11.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-212 and assigned the separation program number 28B (Unfitness, Frequent Involvement in Incidents of a Discreditable Nature with Civil or Military Authorities).  His service was characterized as under conditions other than honorable.  He completed 1 year, 2 months, and 21 days of total active service and he had 2 days of lost time.

12.  On 25 November 1977, the Army Discharge Review Board (ADRB) notified the applicant that a review of his military records determined that he was properly discharged.  Accordingly, his request for a change in the type and nature of his discharge under the Department of Defense Discharge Review Program (Special) was denied.

13.  On 29 January 1981, the ADRB denied the applicant's request for an upgrade of his discharge.  The ADRB determined the applicant's discharge was proper and equitable and was properly characterized as under other than honorable conditions.

14.  Army Regulation 635-212, in effect at the time, set forth the policy and procedures for administrative separation of enlisted personnel for unsuitability and unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  It provided that when separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 that his discharge under other than honorable conditions should be upgraded because he was immature at the time and didn't realize the consequences of his actions.

2.  Considering the applicant successfully completed training and was awarded MOS 91A, his contention that he was immature is not supported by the evidence of record.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  In addition, a psychiatrist specifically found that the applicant was able to tell right from wrong and to adhere to the right.

3.  The applicant's discharge for unfitness under the provisions of Army Regulation 635-212 based on frequent incidents of a discreditable nature with military authorities was administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Thus, considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

4.  The evidence of record shows the applicant received nonjudicial punishment on at least three occasions and he had 2 days of lost time.  Moreover, he completed less than 15 months of his 36-month active duty obligation.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either 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)                                         AR20130004898



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ABCMR Record of Proceedings (cont)                                         AR20130004898



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