BOARD DATE:	  29 May 2014

		DOCKET NUMBER:  AR20130017144 


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 general discharge.

2.  The applicant states his insolence was unnecessary, regrettable, but justified on the part of the Army.  His conduct during his service continues to be an embarrassment that he has lived with for too many years.  His apologies to those under whose command he was assigned are deep and long overdue.  He apologizes to all who were involved in this shameful event of his life.

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 was inducted into the Army of the United States on 16 March 1971 and he held military occupational specialty 95B (Military Policeman (MP)).  On 16 August 1971, he was assigned to the 110th MP Company, Korea.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) as follows:

* on 29 March 1972, for failing to report to his appointed place of duty at the prescribed time over the course of 18 days and for violating a lawful regulation
* on 23 April 1972, for failing to report to his appointed place of duty at the prescribed time
* on 9 June 1972, for failing to obey a lawful order

4.  On 9 June 1972, the applicant underwent a mental status evaluation.  The examining physician noted the applicant's behavior and thought content was normal, he was fully alert and oriented, his thinking process was clear, he was mentally responsible, able to distinguish right from wrong, and had the mental capacity to understand and participate in board proceeding.  The examining physician determined he did meet retention standards.

5.  On 19 June 1972, he was notified by his immediate commander that separation action was being initiated against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability.  The commander cited his frequent involvement in incidents of a discreditable nature with military authorities and his established pattern of apathy.  

6.  On 23 June 1972, he consulted with legal counsel and he was advised of the separation action being initiated against him, the possible effects of a general discharge under honorable conditions, and of the procedures and rights that were available to him.  He waived consideration of his case by a board of officers and elected not to submit a statement in his own behalf.

7.  On 23 June 1972, his immediate commander recommended the applicant be separated under the provisions of Army Regulation 635-212, paragraph 6b(3) for apathy.  His commander stated the action was being recommended because of the applicant's apathy, defective attitudes, and inability to expend effort constructively, manifested by immature, inadequate, and undisciplined behavior and commission of petty offenses.

8.  On 29 June 1972, his senior commander recommended approval of the separation action and requested the action be handled expeditiously.  He stated the nature of the unit's mission precluded the unit commander from spending an inordinate amount of time with Soldiers that refused to comply with military regulations and standards.

9.  On 5 July 1972, the separation authority approved his discharge under the provisions of Army Regulation 635-212 for the good of the service by reason of unsuitability and directed the issuance of a General Discharge Certificate.  On 15 July 1972, he was discharged accordingly.

10.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-212, by reason of unsuitability (separation program number (SPN) 264) with an under honorable conditions characterization of service.  

11.  The proper SPN code used for individuals discharged under the provisions of Army Regulation 635-212, paragraph 6b(3) for apathy and defective attitudes was 46A.

12.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-212, in effect at the time, contained the policy and outlined the procedures for separating individuals for unsuitability.  It provided that individuals would be discharged by reason of unsuitability when their records were characterized by one or more of the following:  (a) inaptitude due to a lack of general adaptability, (b) character and behavior disorders determined by medical authority, (c) apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructive, and/or (d) alcoholism.  This regulation prescribed that an individual discharged for unsuitability would be furnished an honorable or a general discharge.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant, while serving as a military policeman, demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on three occasions for repeatedly failing to report to his appointed place of duty, violating a lawful regulation, and disobeying a lawful order.  Accordingly, his immediate commander initiated separation action against him for unsuitability due to apathy. 

2.  His administrative separation was accomplished in compliance with applicable regulations in effect at the time, with no procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the available facts of the case.

3.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  In view of the foregoing, there is no basis for granting the applicant an honorable 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)                                         AR20130017144



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ABCMR Record of Proceedings (cont)                                         AR20130017144



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