IN THE CASE OF: BOARD DATE: 20 May 2010 DOCKET NUMBER: AR20090019001 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, through his Congressional representative, his general discharge under honorable conditions be upgraded to an honorable discharge. 2. The applicant states he believes his discharge was unjust following an accident. He states he didn't realize it would have an impact on benefits to which he may be entitled. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge From Active Duty) and two personal references. 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's military personnel records show he enlisted in the Regular Army on 9 May 1979 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 19D (Cavalry Scout). 3. On 7 September 1979, the applicant was assigned to B Troop, 2nd Calvary at Fort Hood, TX. 4. The applicant received two formal counseling statements on: * 21 January 1980 for being 5 days late from returning from leave * 7 February 1980 for smoking marijuana in troop billets 5. The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on: * 7 April 1980 for disobedience of a lawful order from a noncommissioned officer, being absent from appointed place of duty, disobedience of a lawful general regulation, and disrespectful language toward a noncommissioned officer * 25 April 1980 for disrespectful deportment toward a warrant officer * 22 September 1980 for wrongful appropriation of a Moped 6. On 14 November 1980, the applicant's commander notified the applicant that the commander was initiating action to discharge him under the provisions of Chapter 13 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for unsuitability based on apathy, lack of appropriate interest, a defective attitude, and an inability to expend effort constructively. The commander advised the applicant of his right to: * have his case considered by a board of officers * appear in person before a board of officers * submit statements in his own behalf * be represented by counsel * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge 7. The applicant acknowledged that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Chapter 13 of Army Regulation 635-200 for unsuitability. The applicant waived: * consideration by a board of officers and a personal appearance * representation by counsel He stated that he was not submitting statements in his own behalf. The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. 8. The applicant's commander recommended him for discharge due to unsuitability. The commander's specific reasons for the recommendation for discharge were the applicant's failure to respond to attempts to counsel him and NJP. The commander stated the applicant had been a constant discipline problem for the past 9 months, had made no contribution to the unit, and was affecting morale in the unit. The commander stated he had been given ample opportunity to prove he could make it as a Soldier in the Army. The commander stated any further attempts at rehabilitation would be a waste of time, money, and effort. 9. On 12 December 1980, the appropriate authority approved the recommendation for discharge under the provisions of Chapter 13 of Army Regulation 635-200, and directed that the applicant be furnished a General Discharge Certificate. 10. On 29 December 1980, the applicant was discharged under the provisions of Chapter 13 of Army Regulation 635-200 by reason of unsuitability - apathy, defective attitude, or inability to expend effort constructively. He had completed 1 year, 7 months, and 21 days of active service that was characterized as under honorable conditions. 11. The two personal references submitted by the applicant attest to his showing great character, being a reformed citizen, and his involvement in youth programs and activities. 12. There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations. 13. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation, in effect at the time, provided for separation due to inaptitude, personality disorder, apathy and homosexuality. Paragraph 13-4c provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. The regulation requires that separation action will be taken, when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. 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. 14. Army Regulation 635-200 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his general discharge under honorable conditions should be upgraded to an honorable discharge because it was unjust following an accident. He contends he didn't realize the discharge would have an impact on his future benefits. 2. The accident the applicant refers to is not a matter of record. There is no evidence to show an accident was the cause of his continued misconduct. The applicant acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. Therefore, these factors were not considered as mitigating in the determination of this case. 3. The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The records contain no indication of procedural or other errors that would tend to jeopardize his rights. 4. The applicant's record of indiscipline, included counseling statements and his accepting NJP on three occasions, shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel. In addition, he did not complete his 3 year enlistment the Army. The applicant's entire record of service was considered. There is no record or documentary evidence of acts of valor or achievement. 5. The applicant's post service achievements and conduct are noted. However, good post service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges solely to make an individual eligible for benefits from another agency. 6. In view of the above, there is insufficient evidence to support an upgrade of the applicant's general discharge. 7. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement. 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) AR20090019001 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090019001 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1