BOARD DATE: 24 November 2015 DOCKET NUMBER: AR20150004832 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 that his undesirable discharge be upgraded to honorable. 2. The applicant states he was under the impression that he would receive an honorable or a general, under honorable conditions discharge. However, on the date of his discharge, he was told that the characterization of his service was under other than honorable conditions. a. He states that he was being deployed to Vietnam after his father had just had two or three heart attacks. He requested that he not be deployed, but a commissioned officer told him "[his father] was going to die anyway." b. He was assigned overseas to Korea. Two or three months later his father died. He wasn't with his father at the time, and he blamed the Army. c. He went absent without leave (AWOL). He returned to the Army and was seen by a psychiatrist at Fort Leonard Wood, MO. He told the psychiatrist that his "head wasn't right" after the trauma of losing his father and not getting to say goodbye to him. The psychiatrist wrote that the applicant "would not" perform his duties instead of writing he "could not" perform his duties. He adds that he would have liked to have continued to serve in the Army, but he couldn't think straight after losing his father. d. He states that he now suffers from several medical conditions and an upgrade of his discharge will allow him to receive medical benefits. 3. The applicant indicated that he was providing copies of paperwork he filed in 2003; however, he provided no additional documentary evidence in support of his 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 18 March 1969 for a period of 3 years. Upon completion of training he was award military occupational specialty 63B (Light Wheeled Vehicle Mechanic). He was assigned overseas to Korea on 9 November 1969. 3. The applicant's DA Form 20 (Enlisted Qualification Record) shows in: a. item 42 (Remarks) that he departed Korea on 18 December 1969 for 30 days emergency leave to the continental United States. He was to return to Fort Lewis, WA, for transport back to Korea on 18 January 1970. On 6 January 1970, he reported to the Mart Federal Building, St. Louis, MO, and applied for a compassionate reassignment. He received assignment instructions to Granite City Army Depot, IL. When the depot started closing down, he was shipped to White Sands Missile Range, NM; and b. item 44 (Time Lost under Section 972, United States Code) shows his periods of AWOL, as follows: From Through 5 September 1969 9 September 1969 21 October 1969 30 October 1969 1 November 1969 6 November 1969 27 February 1970 3 March 1970 22 July 1970 27 July 1970 20 October 1970 20 January 1971 19 March 1971 8 April 1971 4. On 25 January 1971, the applicant's commander notified him of his intention to administratively separate him from the service for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). He also advised him of his rights. The applicant's administrative separation packet shows the applicant had accumulated 5 months of AWOL time and that he had received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on five occasions. 5. A Report of Psychiatric Examination, dated 27 January 1971, shows the examining psychiatrist found the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and that he had the mental capacity to understand and participate in board proceedings. He indicated the applicant met the retention standards of Army Regulation 40-501 (Medical Fitness). The psychiatrist diagnosed the applicant with passive aggressive personality disorder, severe, with no violent tendencies. He believed the applicant was not amendable to further rehabilitative effort nor did he have the potential to become an effective Soldier. The psychiatrist noted the applicant "[b]lames the Army for his domestic problems and has no intention of serving. Will continue to go AWOL until discharge is manipulated." 6. A Standard Form 88 (Report of Medical Examination) shows the examining physician made note of the applicant's passive aggressive disorder and found him to be qualified for separation with a physical profile of 1-1-1-1-1-1. 7. On 27 January 1971, the applicant received legal counseling and he waived consideration of his case by a board of officers, waived a personal appearance, waived representation by counsel, and declined to submit statements in his own behalf. a. He acknowledged he understood that he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him. He also acknowledged that he understood that, as the result of issuance of an undesirable discharge under conditions other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State laws. b. The applicant and his counsel placed their signatures on the document. 8. On 11 February 1971, the applicant's unit commander initiated separation under the provisions of Army Regulation 635-212 for unfitness. The commander based his recommendation on the severe nature of the applicant's psychiatric evaluation, excessive time lost in service, resistance to authority and regulations, and a pattern of behavior which rendered him a complete loss to the service. He added that further counseling and rehabilitative efforts were considered inappropriate in view of the applicant's poor record and negative attitude. He recommended the applicant receive an undesirable discharge. 9. The chain of command recommended approval of the applicant's discharge for unfitness with the issuance of an undesirable discharge. 10. On 19 February 1971, the separation authority approved the commander's request for waiver of rehabilitation and also approved the separation action. He directed the issuance of an Undesirable Discharge Certificate. 11. On 8 April 1971, the applicant was discharged under the provisions of Army Regulation 635-212 with an under other than honorable conditions character of service. He had completed 1 year, 7 months, and 22 days of creditable active service and he had 149 days of lost time due to AWOL. 12. On 2 March 1973, the Army Discharge Review Board (ADRB) determined that the applicant was properly discharged. Accordingly, the ADRB denied the applicant's request for upgrade of his discharge. 13. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate. 14. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter  3, 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. Chapter 3, 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 contends that his discharge should be upgraded because he was under the impression that he would receive an honorable or a general, under honorable conditions discharge, an Army officer spoke rudely to him concerning his father's medical condition, an Army psychiatrist incorrectly noted that he "would not" perform his duties, and an upgrade of his discharge will allow him to receive medical benefits. 2. The sincerity of the applicant's comment with respect to the Army officer is not in question and, if true, his comment was certainly lacking in compassion. With respect to the Army psychiatrist's notation in his report, the evidence of record shows the applicant told the psychiatrist that he had no intention of serving and that he would continue to go AWOL until discharged. This certainly indicates he was not willing to (i.e., would not) perform his military duties. 3. The evidence of record shows that the applicant's unit commander and legal counsel advised him of his rights. He acknowledged he understood that he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him. Although the applicant may have been under the impression that he would receive a general discharge, the applicant also acknowledged he understood that, as the result of issuance of an undesirable discharge under conditions other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State laws. Thus, the evidence of record shows the decision with respect to the characterization of his service had not yet been decided when he was notified of the intent to administratively separate him from the service for unfitness. 4. The applicant's discharge for unfitness under the provisions of Army Regulation 635-212 based on frequent incidents of a discreditable nature with civil or military authorities was administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. Considering all the facts of the case, his separation and the characterization of his service were appropriate and equitable. 5. The evidence of record shows that during the period of service under review the applicant received NJP on five occasions and he had 149 days (i.e., nearly 5 months) of time lost. Moreover, he completed only about 1 year and 8 months of his 3-year active duty obligation. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct and lost time also render his service unsatisfactory. 6. The ABCMR does not grant requests for upgrade of discharges for the purpose of making the applicant eligible for veterans' benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. Additionally, the granting of veterans' benefits is not within the purview of the ABCMR. Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs or appropriate government agency. 7. Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief. 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) AR20150004832 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004832 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1