IN THE CASE OF:  	  

		BOARD DATE:  15 September 2015	  

		DOCKET NUMBER:  AR20150001995 


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 discharge.  

2.  The applicant states he was told he would receive a general discharge.

3.  The applicant provides no additional documents in support of this application.

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 13 November 1969.  

3.  The applicant's record includes a disciplinary history which shows his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for the following offenses:

* on 15 December 1969 for failing to go to his appointed place of duty at the time prescribe on 13 December 1969
* on 6 July 1970 for stealing three cases of C-Rations, valued at $26.25 on 1 and 23 June 1970
* on 26 July 1971 for disobeying a lawful order from a noncommissioned officer (NCO) on 22 January 1971 and for being disrespectful in language and deportment toward an NCO on 22 January 1971
* on 2 July 1971 for disobeying a lawful order from an NCO on 25 June 1971

4.  On 30 December 1971 the applicant's immediate commander recommended that he be separated under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness with an Undesirable Discharge Certificate due to shirking his duties repeatedly, numerous accounts of being disrespectful towards his chain of command, and being disobedient.

5.  His separation packet contains a statement which shows the applicant's record disclosed he received 12 counselings during the period 24 June 1970 to 27 October 1971 for poor performance, theft, a poor attitude, being disrespectful towards an NCO, failure to report for extra duty, repeatedly being disrespectful towards his chain of command, and four Article 15s. 

6.  A Report of Mental Status Evaluation, dated 31 January 1972, shows he was cleared for any administrative actions deemed necessary by his chain of command.

7.  On 11 April 1972, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of Army Regulation 635-212 for unfitness.  The applicant waived consideration of his case by a board of officers and waived a personal appearance.  The applicant did not submit statements in his own behalf and he waived representation by counsel.  The applicant acknowledged that he understood as a result of the issuance of an undesirable discharge he could expect to encounter substantial prejudice in civilian life, that he could 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.  On the same date, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-212.  The applicant's immediate commander stated the discharge was being recommended due to the counselings and Article 15s.  

9.  The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 due to unfitness with the issuance of an Undesirable Discharge Certificate on 18 April 1972.  

10.  On 2 May 1972 the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed 2 years, 5 months, and 20 days of active service.

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15 year statute of limitations.   

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 stated an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) 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 (Enlisted Separations) sets forth the basic authority for 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.
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he received four Article 15s and 12 counselings.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.


2.  The applicant was discharged under the provisions of Army Regulation 
635-212, for unfitness.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

3.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade his undesirable discharge to a general 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)                                         AR20150001995



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ABCMR Record of Proceedings (cont)                                         AR20150001995



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