IN THE CASE OF:	  

		BOARD DATE:	  2 July 2014

		DOCKET NUMBER:  AR20130018918 


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 dishonorable discharge (i.e., under other than honorable conditions discharge) to a fully honorable discharge.

2.  The applicant states he was suffering from mental stress and he now suffers from post-traumatic stress and cancer of the lungs due to exposure from Agent Orange.  Back in 1971, he had an addiction caused by his mental stress which caused him to act irrationally. 

3.  The applicant does not provide any 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's records show he enlisted in the Regular Army for 3 years on 5 May 1971.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman). 

3.  On 22 June 1971, while still in a training status at Fort Jackson, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty. 

4.  He served in Vietnam from 5 October 1971 to 31 March 1972.  He was awarded or authorized the National Defense Service Medal, Vietnam Campaign Medal, and Vietnam Service Medal. 

5.  While in Vietnam, he was frequently counseled by members of his chain of command for various infractions, including:

* drug use/abuse
* multiple instances of failing to attend morning formation
* poor military appearance
* substandard conduct
* multiple instances of missing movement and failing to move with a convoy
* failing to secure combat gear
* multiple instances of failing to obey orders
* multiple instances of failing to get out of bed
* failing to conform to battalion policy during alerts
* negative attitude toward the military 

6.  While in Vietnam, the applicant accepted NJP under the provisions of Article 15 of the UCMJ on/for: 

* 4 November 1971, failing to go at the time prescribed to his appointed place of duty and twice failing to obey a lawful order
* 18 December 1971, being found sleeping upon his post as a sentinel
* 14 February 1972, being absent without leave from 4 to 8 February 1972, missing movement through neglect, and willfully disobeying a lawful order 

7.  Also in Vietnam he underwent a mental status evaluation.  The military psychiatrist stated the applicant displayed a normal behavior, fully-alert level of alertness, fully-oriented level of orientation, leveled mood, normal thought process, and good memory.  He did not show a significant mental illness.  He was fully responsible, able to distinguish right from wrong, and able to adhere to the right.  He met retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and did not have a psychiatric disease or defect which warranted disposition through medical channels.  He was cleared for administrative separation as deemed appropriate by his chain of command. 

8.  On 30 March 1972, the applicant's immediate commander recommended he appear before a board of officers under the provisions of Army Regulation       635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for the purpose of determining whether he should be discharged by reason of unfitness. The immediate commander cited the applicant's continued incidents of a discreditable nature, including conduct rendering him subject to a punitive action. He recommended an undesirable discharge. 

9.  On 30 March 1972, the applicant acknowledged receipt of the separation memorandum.  He consulted with legal counsel and he was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and declined making a statement in his own behalf.  He acknowledged he understood: 

* he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him
* as a result of the issuance of an under other than honorable conditions discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws 

10.  Subsequent to this acknowledgement, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-212, by reason of unfitness with an undesirable discharge.  The immediate commander stated: 

* the discharge is recommended because of the applicant's continued drug habit and frequent incidents of a discreditable nature
* he was frequently involved in incidents of a discreditable nature, including repeated commission of court-martial offenses
* disciplinary action had been to no avail since he had a record number of Article 15s
* he had a complete disregard of any orders or regulations which rendered him of negligible value to the Army

11.  The separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed he be furnished an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade, if applicable.  Accordingly, the applicant was discharged on 12 May 1972.

12.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of Army Regulation 635-212 by reason of unfitness with a separation program number (SPN) of 28B (unfitness).  His character of service was under other than honorable conditions.  He completed 11 months and 25 days of total active service and he had two periods of lost time. 

13.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

14.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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.

16.  Army Regulation 635-200, 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.  

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant displayed a pattern of misconduct as evidenced by his multiple instances of NJP, extensive history of negative counseling, frequent incidents, and an attitude of complete disregard for the order and discipline within the Army.  Accordingly, his chain of command initiated elimination action against him.  The discharge proceedings were conducted in accordance with the law and regulations applicable at the time and the character of service is commensurate with his overall record of military service.  

2.  Contrary to his contention that his misconduct was caused by his mental conditions, the evidence of record clearly shows he underwent a mental status evaluation in connection with his separation action.  His diagnosis was that he met retention standards of Army Regulation 40-501 and did not have a mental disease or defect which warranted disposition through medical channels.  He was medically cleared by an appropriate medical officer for administrative separation as deemed appropriate by his chain of command.

3.  Medical separation is reserved for those whose service is interrupted by a medical condition that failed retention standards and rendered them unfit.  The applicant's service was interrupted by his repeated misconduct, not by any medical or mental condition.  

4.  The reason for his discharge and the characterization of service were both proper and equitable.  Further, the quality of his service clearly did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, he is not entitled to an upgrade of his discharge to either a general or 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)                                         AR20130018918



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ABCMR Record of Proceedings (cont)                                         AR20130018918



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