IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150009919 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150009919 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150009919 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 general discharge to honorable. 2. The applicant states, in effect: * he was supposed to be discharged for hardship * he was needed at home * he had small children at the time of his discharge * he wants to receive benefits 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 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 10 January 1962 for a period of 3 years. He completed his training and was awarded military occupational specialty 11E (armor crewman). On 6 November 1962, he was honorably discharged for immediate reenlistment. He reenlisted on 7 November 1962 for a period of 6 years. 3. On 11 July 1966, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 9 July 1966 to 11 July 1966. 4. On 30 August 1967, NJP was imposed against him for being AWOL from 5 August 1967 to 8 August 1967. 5. On 30 August 1967, he underwent a mental status evaluation and was diagnosed with an inadequate personality. 6. On 25 September 1967, he was notified of his pending separation for unsuitability under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). The commander recommended his discharge for the following reasons: * he was found to be incapable of performing his military duties due to mental strain caused by extreme worry over his family * he has become apathetic in his approach to duties and inept in carrying them out * his lack of interest * he was AWOL from 5 August 1967 to 8 August 1967 7. He consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement in his own behalf. He acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a discharge under conditions other than honorable was issued to him. 8. The separation authority approved the recommendation for separation and directed the issuance of a General Discharge Certificate. 9. He was discharged under honorable conditions for unsuitability on 4 October 1967 under the provisions of Army Regulation 635-212 and issued a DD Form 257A (General Discharge Certificate). He completed 5 years, 8 months, and 20 days of total active service with 5 days of lost time. The separation program number 46A shown on his DD Form 214 represents unsuitability due to apathy, defective attitudes, and inability to expend effort constructively. 10. There is no evidence showing he requested separation for hardship. 11. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-212, then in effect, 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. 2. Army Regulation 635-200 (Personnel Separations Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 6 of the version in effect at the time set forth the criteria and procedures and provided authority for the separation of enlisted personnel because of dependency or hardship. Paragraph 6-4 stated hardship exists when, in circumstances not involving death or disability of a member of a member of the enlisted person's family, separation from the service will materially affect the care or support of the family by alleviating undue and genuine hardship. Separation from the service of enlisted personnel because of dependency or hardship would be granted when all the following circumstances existed: * conditions have arisen or have been aggravated to an excessive degree since entry on active duty or active duty for training * conditions are not of a temporary nature * every reasonable effort had been made by the enlisted person to alleviate the dependency or hardship conditions without success * discharge or release from active military service of the enlisted person is the only readily available means of eliminating or materially alleviating the dependency or hardship conditions b. Paragraph 3-7a currently in effect 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. 3. The U.S. Department of Veterans Affairs Pamphlet 80-14-01 (Federal Benefits for Veterans, Dependents, and Survivors) provides a summary of benefits effective 1 January 2013. These benefits are codified in Title 38, U.S. Code. Eligibility for most Department of Veterans Affairs benefits is based upon discharge from active military service under other than dishonorable conditions. DISCUSSION: 1. Although the applicant contends he was supposed to be discharged for hardship, there is no evidence and he provided no evidence to support this contention. 2. His record of service during his last enlistment included two NJP's and 5 days of lost time. As a result, his record of service was insufficiently meritorious to warrant an honorable discharge. 3. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so. 4. The type of discharge directed and the reasons were appropriate considering all the facts of the case. 5. He stated he wants his discharge upgraded so he can receive veterans' benefits. However, a discharge is not changed for the purpose of qualifying an applicant for veterans' benefits. Each request is individually considered based on the evidence presented. As he was issued a general discharge under honorable conditions, he should contact the nearest Department of Veterans Affairs office to determine his eligibility for veterans' benefits. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009919 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009919 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2