IN THE CASE OF:	  

		BOARD DATE:	  30 October 2014

		DOCKET NUMBER:  AR20140004477 


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 his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states:

   a.  he's carried the stigma of his GD for too long and has always felt the punishment exceeded his oversight;
   
   b.  he instructed all parties concerned including his commander that he erroneously reported he had not received pay when in fact he did, but misplaced his check;
   
   c.  he never lied or provided any false evasive information when confronted; and
   
   d.  his simple mistake coupled with a mutual dislike between him and his commander, resulted in his commander doing everything in his power to successfully discharge him from military 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 initially enlisted in the Regular Army on 23 April 1971.  He was trained in and awarded military occupational specialty 81E (Illustrator).

3.  The applicant's disciplinary history shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates as indicated:

* 14 December 1972 - for submitting a false claim to stop payment on a check in the amount of $110.00 for alleged non-receipt of his December 1971 mid-month check, in that he received and endorsed the check on 10 December 1971
* 16 February 1973 - for failing to go at the time prescribed to his appointed place of duty on 15 and 16 February 1973
* 12 March 1973 - for having been duly restricted to the limits of Arlington Hall Station, did break restriction on 5 March 1973

4.  On 23 May 1973, the unit commander notified the applicant he was recommending the applicant for discharge under the provisions of chapter 13, Army Regulation 635-200, by reason of unfitness.  He cited the following as the basis for the separation action:

* the applicant's receipt of NJP on three separate occasions
* the applicant's failure to report for extra duty on 28 February 1973
* for jointly signing for a loan with his wife in the amount of $600.00, when his record indicates he was in fact single
* for signing a lease in August 1972, with his alleged wife and thereafter being evicted in January 1973, for nonpayment of rent and maintaining animals and living in an unsanitary conditions
* for being a continual disciplinary problem caused by a lack of responsibility and immaturity in handling his personal affairs, evidenced in his $3,118.10 debt, most of which was seriously past due
* for making several false statements to his chain command and the Post Judge Advocate when questioned about his automobile, debts, and all other aspects of his duties in his unit
* repeated counseling and disciplinary action that produced negative results

5.  On 23 May 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, of the rights available to him, and of the effect of a waiver of those rights.  Subsequent to receiving legal counsel, the applicant completed a statement in which he waived his right to consideration of his case by a board of officers, a personal appearance before a board of officers, and representation by counsel.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he was issued a GD.

6.  On 5 June 1973, the applicant underwent a psychiatric examination.  The attending psychiatrist and social worker indicated the applicant(‘s):

	a.  was given a Minnesota Multiphase Personality Inventory (MMPI) and according to the results of his profile, he might be viewed to fall within a depression group;

	b.  complaints of depression and mood were consistent with the MMPI results;

	c.  was recommended for more sessions; however, at that time he had only been seen on one other occasion;

   d.   continued to appear depressed and he displayed a flattened affect; and

	e.  did not present any significant psychiatric process upon the current evaluation and was considered responsible for his actions and therefore was able to face board action.

7.  On 12 June 1973, the psychiatrist and social worker prepared a supplemental statement to delete their original mental status evaluation and determined the applicant would be viewed as a personality disorder.  A mental status evaluation dated 12 June 1973 shows the applicant('s):

* behavior was characterized as "passive personality trait"
* thought content was normal
* memory was good
* had no significant mental illness
* was mentally responsible
* was able to distinguish right from wrong and adhere to the right
* had the mental capacity to understand and participate in separation proceedings
* met retention requirements

8.  On 12 June 1973, a statement was prepared to supplement the psychiatric statement submitted on 5 June 1973, in which the applicant was cleared psychiatrically to face impending board action.  In this supplemental statement the attending psychiatrist and social worker deleted its original report of mental status evaluation and provided, in light of the history of the applicant's actions and his explanations for his behavior, he would be viewed as a personality disorder.

9.  On 15 June 1973, the applicant's counsel submitted a statement requesting consideration be given to process the applicant's recommendation for discharge under the provisions of chapter 13, Army Regulation 635-200 based on unsuitability rather than unfitness.  He stated, in effect:

   a.  the applicant's difficulties with military authorities came to light during the rather brief period between December 1972 and February 1973, which coincided with his estrangement from his fiancée;
   
   b.  his fiancée was directly connected with and perhaps the proximate cause of most of the applicant's financial difficulties; and
   
   c.  the applicant, for psychiatric reasons, was prone to use poor judgment in high-stress situations and was therefore unable to adjust to military life.

10.  The separation authority, having considered counsel's request, indicated the applicant's consistent pattern of financial fraud and deceit dating back to December 1971 to the present, his eviction from his apartment, and his other activities are within the scope of "unfitness," under the provisions of Army Regulation 635-200, paragraph 13-5(a)(1)(5).

11.  On 20 July 1973, the separation authority directed the applicant’s discharge under the provisions of Army Regulation 635-200, by reason of unfitness with a GD.  However, the separation authority also provided that the applicant will be assigned a separation program number (SPN) code of "46A" (unsuitability).

12.  On 10 March 1977, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable and voted to deny his request for an upgrade.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.

   a.  Chapter 13 of the version of the regulation in effect at the time of the applicant’s discharge applied to separation for unfitness and unsuitability.  A separation for unfitness was given to members involved in frequent incidents of a discreditable nature with civil or military authorities.  Separation of individuals for unsuitability was authorized when a member's record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability or unfitness was warranted an HD or GD was issued as determined by the separation authority based upon the individual’s entire record.
   
   b.  Paragraph 3-7a provides that an HD 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.

14.  Army Regulation 635-5-1 (Separation Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  The regulation in effect at the time of the applicant’s discharge stipulated that SPN 46A was the appropriate code to assign Soldiers separated by reason of unsuitability (apathy, defective attitude or inability to expend effort constructively).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his GD should be upgraded to an HD because he carried the stigma of a GD for too long and the misconduct that resulted in his discharge was an oversight on his part.  These claims are insufficient to mitigate the requested relief.

2.  The applicant's record reveals a disciplinary history that includes his acceptance of NJP on three separate occasions and his frequent incidents of a discreditable nature with civil or military authorities.  His record of misconduct clearly diminished the overall quality of his service below that warranting the issuance of an HD.  Therefore, it would not be appropriate to upgrade his discharge at this late date.

3.  The evidence of record confirms that after considering the misconduct that led to commander's recommendation for the applicant's discharge, the psychiatric evaluations, and request by counsel to consider the applicant's discharge based on "unsuitability"; the separation authority directed the applicant be discharged under the provisions of chapter 13, Army Regulation 635-200, for "unfitness" and assigned SPN code "46A."  It appears the separation authority erred in assigning the applicant SPN code "46A" as this code is designated for those Soldiers discharged by reason of unsuitability and not unfitness.  However, this error alone does not call into question the characterization of the applicant's discharge and changing it now to a possible less favorable code based on unfitness would not be advantageous for the applicant.  Further, it is the Board's policy not to render a decision that would make Soldier's record less favorable.

4.  Accordingly, minus the SPN code assignment, the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20140004477





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ABCMR Record of Proceedings (cont)                                         AR20140004477



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