BOARD DATE:	  29 September 2015

		DOCKET NUMBER:  AR20150001930 


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 to under honorable conditions (general).

2.  He states item 30 "Remarks" of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that his discharge would be upgraded to general in 10 years.  He adds that it has been 44 years. 

3.  He provides his DD Form 214.

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 inducted into the Army of the United States on 25 June 1970. 
3.  Item 32 (Civilian Education) of his DA Form 20 (Enlisted Qualification Record) shows he attended school at Dunbar Vocational High School, Chicago, IL.  He completed 10 years in 1966 and his special subjects were listed as "General."

4.  A DD Form 458 (Charge Sheet) dated 29 September 1971, shows that charges were preferred against the applicant for being absent without leave (AWOL) from the U.S. Army Personnel Control Facility, Fort Riley, KS from 
10 April to 20 September 1971.

5.  On 12 October 1971, the unit commander notified the applicant of his intent to recommend his separation from the Army under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness.  He stated an interview with the applicant and a review of his records indicated that the best interest of the service would be met by his elimination action for unfitness.  He said the applicant's record reflected 262 days of bad time.  He added that the applicant's mental status evaluation report shows no mental conditions existed to warrant discharge through medical channels.  He recommended the applicant be issued an Undesirable Discharge Certificate.

6.  On 18 October 1971, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, to personal appearance before a board of officers, and to counsel.  He also elected not to submit statements on his behalf.

7.  He acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued.  He further understood that as the result of an undesirable discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.

8.  His separation documents are void of any evidence that shows he was informed and/or counseled that his discharge would be automatically upgraded to general in 10 years.

9.  On 26 October 1971, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-212 for unfitness.  He directed that the applicant be furnished an Undesirable Discharge Certificate.


10.  His DD Form 214 shows he was discharged under conditions other than honorable on 15 November 1971 and issued an Undesirable Discharge Certificate. The reason and authority for discharge was listed as Army Regulation 635-212.  Item 30 of his DD Form 214 shows "10 Years – General."  He completed 7 months and 23 days of total active service with 268 days of lost time.  

11.  On 2 February 1979, he appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 23 April 1980, the ADRB denied his request for a discharge upgrade citing that he was properly discharged. 

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

14.  Army Regulation 635-5 (Separation Documents), in effect at the time, establishes standardized policy for preparing and distributing the DD Form 214.  The regulation states that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Section III, Instructions for Preparation and Distribution of the 
DD Form 214, instructs the preparer, in pertinent part, to enter the highest civilian education level attained as the first entry in item 30.

DISCUSSION AND CONCLUSIONS:

1.  The applicant believes that item 30 of his DD Form 214 indicates that his discharge would be automatically upgraded to general in 10 years.  However, this information reflects his highest civilian education level.  Nevertheless, the Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

2.  Evidence of record shows he was separated for "unfitness" as recommended by the commander after conducting an interview and reviewing his personnel records that included 268 days of lost time.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.  In its review in 1980, the ADRB determined he was properly discharged.

3.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Thus there is insufficient evidence now to upgrade 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)                                         AR20150001930





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ABCMR Record of Proceedings (cont)                                         AR20150001930



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