IN THE CASE OF:	   

		BOARD DATE:	  16 December 2014

		DOCKET NUMBER:  AR20140007071 


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 honorable conditions (general) discharge to a fully honorable discharge. 

2.  The applicant states he has been an upstanding citizen.  He has not had any felonies or time in prison. 

3.  The applicant does not provide any evidence in support of his request. 

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 enlisted in the Regular Army on 20 March 1972.  He was assigned to Fort Knox, KY for completion of basic combat and advanced individual training. 
3.  On 18 July 1972, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for taking steps to avoid his duty by saying he had to go on sick call; instead, he went back to the barracks and wrote letters. 

4.  On 24 July 1972, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty on three separate occasions and breaking restriction.

5.  On 21 August 1972, he underwent a mental status evaluation due to continually missing training, poor attitude toward the military, and frequent complaints.  The military physician found him mentally responsible with no significant mental illness.  He met retention standards and was cleared for administrative actions by his chain of command. 

6.  On 21 August 1972, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), by reason of unsuitability citing the applicant's poor attitude and record of disciplinary actions. 

7.  On 21 August 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 and 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. 

8.  Subsequent to this acknowledgement, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-212, by reason of unsuitability with an under honorable conditions (general) discharge. The immediate commander cited the applicant's poor attitude and record of disciplinary actions. 

9.  On 25 and 28 August 1972, the applicant's intermediate and senior commanders recommended approval of the discharge with the issuance of a general discharge. 
10.  On 6 September 1972, 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 unsuitability and directed he be furnished a General Discharge Certificate.

11.  The applicant was accordingly discharged on 19 September 1972.  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 unsuitability with a separation program number (SPN) of 46A (Unsuitability, apathy, defective attitude and inability to expend effort constructively).  His character of service was under honorable conditions.  He completed 6 months of total active service.

12.  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. 

13.  Army Regulation 635-212, then in effect (July 1966), set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b stated an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel.  Paragraph    3-7a states 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 applicant's records reveal a disciplinary history which includes at least two instances of NJP and multiple instances of failure to be at his appointed place if duty during training.  He appears to have been provided with multiple counseling and/or opportunities for rehabilitation by various members of his chain of command; however, he failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.

2.  His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.

3.  The quality of his service did not meet 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.  Based on his record of indiscipline, his service does not merit an upgrade of his discharge to a fully 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)                                         AR20140007071



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ABCMR Record of Proceedings (cont)                                         AR20140007071



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