IN THE CASE OF: BOARD DATE: 14 September 2013 DOCKET NUMBER: AR20130002572 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 general discharge be upgraded to an honorable discharge. 2. The applicant states he was placed in a detention company while in basic training for no justified reason. He injured his back at his initial site of basic training at Fort Lewis, Washington, and at the detention company and he was discharged during advanced individual training (AIT) for his back injury. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and copies of civilian medical treatment records. 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 1 December 1970 for a period of 3 years and training as a combat engineer. He was transferred to Fort Lewis, Washington, to undergo his basic training. The applicant was recycled three times and was assigned to a special training company (STC). 3. On 19 March 1971, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 3 March to 19 March 1971. 4. On 17 April 1971, NJP was imposed against him for being AWOL from 4 April to 15 April 1971. 5. On 28 May 1971, he was convicted by a summary court-martial of being AWOL from 17 April to 11 May 1971. 6. On 14 July 1971, he underwent a psychiatric evaluation and was diagnosed as having an immature personality, chronic, moderate, manifested by anxiety, passive-aggressive behavior and inability to adjust to military life. The examining official indicated that the applicant had been recycled three times and spent 6 months in STC. He has been on sick call numerous times, has little motivation for finishing basic training, and does not understand why the military wants him. He complains that when he is under stress he gets nervous and agitated and feels like he is going to fall apart. He insists that he is unable to adapt to the Army and lacks any foresight into his future goals. He was given the opportunity to ventilate, supportive therapy, and was returned to duty. 7. On 28 September 1971, he was transferred to Fort Leonard Wood, Missouri, to undergo his advanced individual training (AIT) as a combat engineer. 8. On 14 October 1971, NJP was imposed against him for failure to go to his place of duty on 12 October 1971. 9. On 17 November 1971, he again underwent a psychiatric evaluation and was diagnosed as having a Passive-Aggressive Personality Disorder, Severe. The examining psychiatrist opined that given his past record of performance and avowed intentions of not wanting to complete his AIT made him a poor candidate for the Army’s purposes and recommended that the applicant be separated from the service. 10. On 22 November 1971, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) for unsuitability. 11. After consulting with defense counsel the applicant waived all of his rights and elected not to submit a statement in his own behalf. 12. On 1 December 1971, the applicant met with the battalion commander and informed him that he could not get along with people, especially anyone trying to tell him what to do. He gets very tense and nervous under these conditions and has to go AWOL and just hitch-hikes around. He stated that it would be best for all concerned if he were discharged. The battalion commander recommended that he be issued a General Discharge Certificate. 13. The appropriate authority approved the recommendation for discharge on 3 December 1971 and directed that he be furnished a General Discharge Certificate. 14. Accordingly, he was discharged under honorable conditions on 15 December 1971 under the provisions of Army Regulation 635-212 for unsuitability. 15. At the time the applicant underwent his separation physical/medical examination, he indicated that he had foot and back problems. Upon completion of his examination the physician declared that he was fit for retention or separation. 16. There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 17. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unsuitability due to apathy, inaptitude, character and behavior disorders and alcoholism. It provided, in part, that members who displayed an apathetic attitude towards their service obligations and/or military authorities were subject to separation for unsuitability. Although an honorable or general discharge was authorized, an undesirable discharge was normally considered appropriate. DISCUSSION AND CONCLUSIONS: 1. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights. 2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances. 3. The applicant’s contentions and supporting documents have been noted by the Board and while they are not supported by either evidence submitted with his application or the evidence of record, they are also not sufficiently mitigating to warrant relief when compared to his otherwise undistinguished record of service during such a short period of time. His overall record of misconduct provided clear and demonstrable reasons why a fully honorable discharge was not, and is not now, appropriate. His service simply does not rise to the level of a fully honorable discharge and he did not then or now provide sufficient mitigating circumstances to explain his conduct at the time. 4. Accordingly, there appears to be no basis to grant his request for an upgrade of his discharge to fully honorable. 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) AR20130002572 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130002572 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1