IN THE CASE OF:	  

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130005594 


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 general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he is trying to improve his Department of Veterans Affairs (VA) compensation benefits and he wants to improve his job capability.  He has been a productive citizen and believes he is entitled to an upgrade.

3.  The applicant provides 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.  On 30 January 1968, he enlisted in the Regular Army.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).  On 28 August 1968, he was assigned to Headquarters and Headquarters Company, 4th Battalion, 325th Infantry at Fort Bragg, NC.

3.  On 26 February 1969, he was tried before a special court-martial.  He pled guilty and was found guilty of being absent without leave (AWOL) from on or about 13 January until on or about 10 February 1969.

4.  On 18 April 1969, he was examined by the Division Psychiatrist.  The examiner:

* found he met retention standards and was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings  
* diagnosed the applicant with a severe aggressive personality disorder, manifested by the inability to control his temper and a propensity to view any type of orders as a challenge to his manhood
* recommended that the applicant be separated from the service under the provisions of Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability)

5.  On 25 April 1969, he accepted nonjudicial punishment (NJP) for failure to repair.

6.  On 25 April 1969, his unit commander recommended he be discharged under the provisions of paragraph 6b(2) of Army Regulation 635-212 and be issued a general discharge.

	a.  The applicant was considered unsuitable and a sub-standard Soldier.

	b.  His performance of duty had been unsatisfactory.  His military superiors and the psychiatric examiner agreed that further rehabilitation efforts would be useless.

	c.  He had been counseled on 13 occasions and his direct supervisors had counseled him on occasions too numerous to list with no result.

	d.  Further rehabilitation transfer was requested to be waived.  Repeated counseling and changes of immediate supervisors were effected with no favorable change in his attitude.  It was felt that further utilization of the applicant would only create serious morale and disciplinary problems in the company.
7.  On 28 April 1969, the applicant's commander advised him that he intended to recommend he be discharged under the provisions of Army Regulation 635-212 due to his:

* special court-martial
* failure to repair
* breach of restriction
* being a substandard Soldier
* being a disciplinary problem

8.  The commander advised the applicant of his right to: 

* present his case before a board of officers
* submit any statement in his behalf
* be represented by counsel 
* waive the above rights in writing

9.  On 23 May 1969, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-212 for unsuitability.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.   He understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.

10.  The appropriate authority approved the recommendation for discharge and directed the applicant be issued a General Discharge Certificate.

11.  On 3 June 1969, the applicant was discharged for unsuitability under the provisions of Army Regulation 635-212 and issued a General Discharge Certificate.  He had completed 1 year, 2 months, and 1 day of active service that was characterized as under honorable conditions.  He had 63 days of time lost.

12.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned conduct and efficiency ratings of unsatisfactory during the period he was assigned to HHC, 4th Battalion, 325th Infantry.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b(2) of the regulation provided that members who were determined to suffer from character and behavior disorders were subject to separation for unsuitability.  This regulation further provided that Soldiers separated by reason of unsuitability would be furnished an honorable or general discharge certificate as warranted by their military record.

14.  Army Regulation 635-200 (Personnel Separations), in effect at the time, provided that an honorable discharge would be furnished when the individual had conduct ratings of at least "good," had efficiency ratings of at least "fair," had not been convicted by a general court-martial, and had not been convicted more than once by a special court-martial.  

DISCUSSION AND CONCLUSIONS:

1.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, the type of discharge and the reason for separation were appropriate considering all the facts of the case.

2.  He received conduct and efficiency ratings of unsatisfactory from his last duty assignment.  He had one special court-martial and accepted NJP on one occasion.  He required numerous counseling sessions according to his commander's recommendation for his discharge.  He had 63 days of time lost.  This clearly shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel which would have been required to warrant an honorable discharge.

3.  The ABCMR does not upgrade properly issued discharges based solely on the passage of time.  Any improvement to his VA benefits desired by the applicant should be sought through that agency.

4.  In view of the above, there is an insufficient basis to upgrade his 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)                                         AR20130005594



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ABCMR Record of Proceedings (cont)                                         AR20130005594



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