IN THE CASE OF:	  

		BOARD DATE:	  30 January 2014

		DOCKET NUMBER:  AR20130021491 


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 under other than honorable conditions discharge.

2.  The applicant states he was discharged because he was a drug abuser but there was no consideration of the fact that he served honorably for approximately 16 months during the war. 

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 was inducted into the Army of the United States on 2 June 1969.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 94B (Cook). 

3.  On 7 July 1969, while still in training at Fort Knox, KY, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 4 to 6 July 1969. 

4.  On 19 February 1970, at Fort Sill, OK, he was convicted by a special court-martial of one specification of being AWOL from 29 December 1969 to 20 January 1970.  The court sentenced him to confinement at hard labor for 
2 months and a forfeiture of $75.00 pay per month for 4 months.  The convening authority approved a lesser sentence by suspending the adjudged sentence to confinement.

5.  On 11 May 1970, the applicant again departed his unit in an AWOL status and he appears to have been dropped from the rolls as a deserter.  He returned to military control on 30 October 1970. 

6.  On 5 November 1970, the applicant underwent a mental status evaluation.  He was found mentally responsible, able to distinguish right from wrong, able to adhere to the right, and met the retention standards.  He was diagnosed with a passive aggressive personality disorder.  The military psychiatrist indicated "this enlisted member does not want to be in the Army and will not Soldier.  He will continue to be a problem if not discharged."  He was cleared for separation from the military.

7.  On 6 November 1970, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness.   

8.  On 6 November 1970, 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 

9.  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 under other than honorable conditions discharge.  The immediate commander stated: 

* the applicant had a poor attitude and he was unwilling to serve; further rehabilitative efforts were futile in his case
* the applicant had excessive time lost and he resisted authority and regulations; his pattern of behavior rendered him a complete loss to the service
* his performance was characterized by a lack of appropriate interest and manifested by a negative attitude toward those responsibilities required of him as a Soldier

10.  The applicant's senior commander recommended approval of the discharge action with the issuance of an undesirable discharge. 

11.  Consistent with the chain of command's recommendations, 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 21 December 1970. 

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 1 year and 7 months of total active service and he had 197 days of lost time.

13.  On 9 January 1981, the Army Discharge Review Board (ADRB) reviewed his discharge and determined he was properly and equitably discharged.  The ADRB voted unanimously to deny his petition for an upgrade of his discharge.

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.

	a.  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.

	b.  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 evidence of record shows the applicant displayed a pattern of misconduct as evidenced by his one instance of NJP, one court-martial conviction, a repeated pattern of AWOL, and an attitude of complete disregard of the Army.  Accordingly, his chain of command initiated elimination action against him.  The discharge proceedings were conducted in accordance with 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 he was discharged for being a drug abuser, the evidence of record shows he was discharged for unfitness after having accrued an extensive history of AWOL, having a negative attitude, and after failing to live up to his responsibilities as a Soldier.  

3.  Also contrary to his argument that he had approximately 16 months of honorable service, the evidence of record shows he served from 2 June 1969 to 21 December 1970 which equates to approximately 16 months; however, he had 197 days of lost time during this period.  He did not serve honorably for approximately 16 months as he claims. 

4.  The reason for his discharge and the characterization of service were both proper and equitable.  Further, the quality of his service 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.

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)                                         AR20130021491





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ABCMR Record of Proceedings (cont)                                         AR20130021491



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