IN THE CASE OF:	  

		BOARD DATE:	  17 April 2014

		DOCKET NUMBER:  AR20130015173 


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 upgrade of his discharge.

2.  The applicant states he was raised by a single mother who was incapable of enforcing discipline.  Therefore, when he joined the Army he was incapable of understanding and complying with standards of behavior.  This low impulse control not only got him discharged it subsequently led to his incarceration.  He eventually learned and is seeking a second chance.  Unfortunately, his background keeps him from finding meaningful employment.  He has health problems and an upgrade of his discharge would let him receive health care from the Department of Veterans Affairs.  He is now a law-abiding citizen and a contributing member of society.  

3.  The applicant provides only his personal statement.

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 January 1967 and completed training as a engineering supply and parts specialist.  He was advanced to pay grade E-3 on 28 August 1967.

3.  The applicant was assigned to Okinawa in June 1967.  Starting in December 1967 he commenced a series of offenses that resulted in seven nonjudicial punishments (NJPs) under the provisions of Article 15, Uniform Code of Military Justice, and a special court-martial conviction.

4.  On 2 January 1969, a psychiatrist conducted an evaluation and considered the applicant sane and responsible.  He was capable of distinguishing right from wrong and able to adhere to the right.

5.  On 7 January 1969, he was advised of contemplated separation for unfitness.  He consulted with counsel and waived consideration of his case by a board of officers and representation by counsel.  He declined to submit statements in his own behalf.

6.  The chain of command recommended separation with an undesirable discharge and the separation authority so directed.

7.  On 13 February 1969, the applicant was separated under the provisions of Army Regulation 635-212 for unfitness as evidenced by frequent acts of a discreditable nature.  He was issued an undesirable discharge certificate.  He had completed 1 year, 9 months, and 21 days creditable and had 107 days lost time. 

8.  On 4 August 1975 and 27 August 1980, the Army Discharge Review Board denied the applicant's requests to upgrade his discharge.

9.  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 including frequent incidents of a discreditable nature with civil or military authorities existed.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.



10.  Army Regulation 635-200 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.  Paragraph 3-7b states 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 when he joined the Army he was incapable of understanding and complying with standards of behavior.  

2.  The applicant demonstrated a capacity for honorable service by completion of training, progressing to pay grade E-3, and several months of satisfactory service.  The contention that he was incapable of serving in the Army lacks merit.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

4.  VA benefits is an issue that is not within the jurisdiction of this Board and it is not normally considered a basis for upgrading a discharge.

5.  In view of the above, there is insufficient evidence on which to base granting the relief requested.

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)                                         AR20130015173





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130015173



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1