IN THE CASE OF:	  

		BOARD DATE:	    5 August 2014

		DOCKET NUMBER:  AR20130021116 


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 undesirable discharge to a general under honorable conditions discharge.

2.  The applicant states he was unfairly discharged for reasons that are listed as willful and persistent.  He made mistakes as a young man and should not be punished for the rest of his life because of them.  He now needs medical treatment for conditions that began in service; however, he is being denied treatment because he accepted a discharge offered to him when he was not fully aware of the situation.  Had he known, he would have accepted punishment for his actions and remained in service.

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 born on 4 February 1953 and he enlisted in the Regular Army on 11 March 1970, at the age of 17 years, 1 month, and 8 days.

3.  Evidence contained in his military records shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 25 January 1971, for failing to obey a lawful order on three separate occasions and for leaving his appointed place of duty
* 23 June 1971, for absenting himself from his appointed place of duty on two separate occasions
* 4 October 1971, for leaving his appointed place of duty and for using disrespectful language toward his superior noncommissioned officer

4.  The applicant's record contains an Army Europe Form 1107 (Bar to Enlistment/Reenlistment), initiated on 16 December 1971, that states the applicant was pending a summary courts-martial and a discharge for unfitness.  His commanding officer further stated the applicant does not respond well to working with others, does not want to be a member of the U.S. Army, will not work satisfactorily as a member of the command, and is not suited for future service.  The applicant did not submit a statement in his own behalf and his battalion commander recommended the applicant be barred from enlistment/reenlistment.

5.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a letter from the separation authority, dated 21 March 1972, that directed the applicant be discharged from service for unfitness under the provisions of paragraph 6a(1), Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), frequent incidents of a discreditable nature with civil or military authorities and paragraph 6a(4), for shirking.

6.  His records also contain a duly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 10 May 1972, under the provisions of Army Regulation 635-212 by reason of unfitness with a character of service of under conditions other than honorable.  He completed 2 years and 2 months of creditable active service with no lost time.

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  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.

9.  Army Regulation 635-200 (Personnel Separations), 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's request to upgrade his undesirable discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  However, his record contains sufficient evidence, including a properly-constituted DD Form 214 that shows he was discharged on 10 May 1972, under the provisions of Army Regulation 635-212 by reason of unfitness.

3.  His record reveals a disciplinary history which includes his acceptance of NJP under the provisions of Article 15 of the UCMJ on three occasions and it appears he may have been pending a summary court-martial.  Based on this record of indiscipline, the applicant's misconduct rendered his service unsatisfactory.

4.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-212, for unfitness.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  With respect to his age and maturity there is insufficient evidence which indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  
6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130021116





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ABCMR Record of Proceedings (cont)                                         AR20130021116



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