RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: FEBRUARY 3, 2003
         DOCKET NUMBER: AR2003090288


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Ms. Regan K. Smith		Member
Mr. Curtis L. Greenway		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that the reason and authority for his discharged be changed from unsuitability-apathy, defective attitude or inability to expend effort constructively, to another reason.

2. The applicant states, in effect, that he had no history of duty performance problems.

3. The applicant provides a copy of a Fort McClellan Form 617, Recommendation for Elimination UP [under the provisions of] Chapter 13, AR [Army Regulation] 635-200, dated 21 October 1976.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice, which occurred on 5 November 1976. The application submitted in this case is dated 15 April 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant enlisted for 3 years in the Regular Army for US Army Training of choice enlistment option (75D – Personnel Records Specialist) on 30 May 1975. He successfully completed basic combat and advanced individual training at Fort Jackson, South Carolina. On completion of his training, he was awarded the military occupational specialty (MOS), 75D (Personnel Records Specialist).

4. The applicant’s records show that the highest rank and pay grade that he attained, while in the Army, was Private First Class, E-3. He was promoted to this rank on 5 February 1976.

5. On 22 July 1976, the applicant received nonjudicial punishment (NJP) under the provision of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully having marijuana in his possession, on 13 March 1976. His punishment was a reduction in one grade to Private, E-2, suspended until 1 September 1976, and forfeiture of $75.00 for one month.

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6. On 10 August 1976, the commander vacated the suspension of reduction to Private, E-2, that had been imposed on him in the Article 15 that was administered on 22 July 1976.

7. The applicant was reduced to the rank and pay grade, Private, E-2, with an effective date and date of rank of 22 July 1976.

8. On 6 October 1976, the applicant was given a mental status evaluation. He was seen in the Community Mental Health Activity for evaluation for separation.

9. A DA Form 3822-R, Report of Mental Status Examination, was prepared after the examination and reflects the examining physician's opinion that: the applicant's behavior was normal, he was fully alert, and he was fully oriented, his mood was level, his thinking process was clear, his thought content was normal, and his memory was good. In the opinion of the examining physician, the applicant had no significant mental illness; was mentally responsible; was able to distinguish right from wrong, and able to adhere to the right. He had the mental capacity to understand and participate in board proceedings and met the retention standards prescribed in chapter 3, AR 40-501. The examining physician further opined, "that further rehabilitative efforts would be non-productive." The applicant was psychiatrically cleared for administrative action under chapter 13, AR 635-300.

10. On 13 October 1976, the applicant was notified by his unit commander of her intent to initiate separation action under the provisions of AR 635-200, paragraph 13-5b(3), for unsuitability. The applicant acknowledged the commander's intentions on the same date.

11. On 15 October 1976, the applicant consulted with counsel and completed his election of rights. The applicant waived his rights to have his case considered by a board of officers, waived a personal appearance before a board of officers, waived representation by civilian counsel at his own expense, waived a psychiatric examination in connection with is separation action, and elected not to make a statement in his own behalf.

12. The applicant stated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

13. On 21 October 1976, the unit commander submitted the separation action. The separation "packet" included a statement from the administrative chaplain dated 24 September 1976, which stated that the applicant had numerous problems adapting to the discipline and way of life he had confronted in the

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military. He opined that continued military service would be a detriment to the Army and to the applicant.

14. The separation "packet" also included two Records of Counseling (Fort McClellan Form 138-R). In the Record of Counseling dated 16 March 1976, he was counseled because he was picked up on 15 March 1976 and charged with conveying a threat to a military policeman. He was referred to seek legal assistance for this violation.

15. In the Record of Counseling he received on 22 July 1976, he was counseled for violation of a company policy that prohibited having female guests in his male billets. As punishment, he received a verbal reprimand.

16. The separation "packet" also included a request, with two enclosures, recommending that the applicant be disciplined for his failure to complete duty assignments that had been given him by his noncommissioned officers in charge. The "packet" also included seven statements from a variety of other noncommissioned officers and peers who were witnesses to his refusals to cooperate and to show interest in his assigned duties, his unconcerned attitude, profanity, inability to stay awake, failure to follow instructions, lack of truthfulness, intimidation of fellow workers, and reporting late to his assigned duty section.

17. On 22 and 26 October 1976, the intermediate commanders recommended approval of the separation, and on 26 October 1976, the approval authority, a colonel, approved the separation action and directed that the applicant be issued a general, under honorable conditions, discharge.

18. The applicant was discharged on 5 November 1976, in the rank of private, pay grade E-2, under the provisions of AR 635-200, paragraph 13-5b(3), after having completed 1 year, 5 months, and 6 days active military service. Item 27 (Remarks) of the applicant's DD Form 214, shows that the applicant had 4 days lost due to excess leave from 7 September 1976 through 10 September 1976.

19. Item 9c (Authority and Reason) of the DD Form 214 that was issued the applicant shows that he was discharged under the provision of paragraph
13-5b(3), AR 635-200 and was given an SPD (Separation Program Designator) of "JMJ."

20. Army Regulation 635-5-1 (Separation Program Designator Codes) shows the reason for discharge based on separation code “JMJ” is “unsuitability-apathy, defective attitude or inability to expend effort constructively." AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 establishes policy and procedures for eliminating personnel found to be unfit or unsuitable for further service.

21. There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1. 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 this requirement.

2. The applicant’s discharge proceedings appear to have been conducted in accordance with law and regulations applicable at the time of his separation.

3. Contrary to the applicant's contention that he had no history of duty performance problems, the commander submitted numerous statements authored by his [the applicant's] noncommissioned officers in charge, other noncommissioned officers, and a peer who had an opportunity to witness his apathetic approach to his assigned duties and responsibilities.

4. The above referred to statements depict an individual who: failed to complete duty assignment that had been given him by his noncommissioned officers in charge, had refused to cooperate and to show interest in his assigned duties, had demonstrated an unconcerned attitude, had spoken with profanity, had not stayed awake when required to, had failed to follow instructions, had shown a lack of truthfulness, had tried to intimidate his fellow workers, and had reported late to his assigned duty section.

5. The evidence of record shows that the applicant received nonjudicial punishment under the UCMJ on two occasions for misconduct. He was reduced to Private E-2 as a result of this misconduct. In addition, the applicant was formally counseled on two other occasions. These counselings resulted in his being referred to seek legal assistance and a verbal reprimand.

6. The applicant was recommended for separation from the Army for unsuitability-apathy, defective attitude or inability to expend effort constructively. The assigned SPD, "JMJ," shown on his DD Form 214, corresponds to the reason and the authority for which he was discharged.

7. In view of the circumstances and the evidence of record, in this case, the applicant is not entitled to a change or removal of the reason for separation that he now seeks.

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8. Records show the applicant should have discovered the alleged error or injustice now under consideration on 5 November 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 4 November 1979. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

rks_____ sac__ ___ clg___ __ DENY APPLICATION

1. The Board determined that 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.

2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




                  ___Samuel A. Crumpler___
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090288
SUFFIX
RECON
DATE BOARDED	20040203
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19761105
DISCHARGE AUTHORITY	AR 635-200, chapter 13, paragraph 13-5(3)
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2. 191	110.0200
3.
4.
5.
6.