RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060014306 


	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.


x

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

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


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that his command instructed him that he was being separated based on a personality disorder with an HD.  He states there is no justification for his receiving a GD and he feels it is just wrong.  He further states that he did not request to be discharged and that aside from his personality disorder, he served his country with pride, dignity and commitment, and he is therefore, now requesting that his discharge be upgraded to an HD.

3.  The applicant provides a Department of Veterans Affairs (VA) Letter, dated 
1 September 2006, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 9 March 1978.  The application submitted in this case is dated 
25 September 2006.

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 limitations 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’s record shows he enlisted in the Regular Army and entered active duty on 9 May 1975.  He was trained in, awarded and served in military occupational specialty (MOS) 64C (Motor Transportation Operator), and the highest rank he attained while serving on active duty was private first class (PFC).  

4.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  The record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions.   

5.  On 26 May 1976, the applicant accepted NJP for failure to obey a lawful order.  His punishment for this offense was reduction in grade to private/E-1 (PV1), suspended for 2 months, and 14 days extra duty and restriction.

6.  On 20 May 1977, the applicant accepted NJP for wrongfully having in his possession a smoking pike containing residue of suspected marijuana.  His punishment for this offense was a forfeiture of $50.00, reduction in grade to PV1, which was suspended and 14 days of extra duty.  

7.  On 6 September 1977, the applicant accepted NJP for failure to obey a lawful general regulation to secure his weapon in a wall locker.  His punishment for this offense was a reduction to private/E-2 (PV2), suspended, a forfeiture of $25.00, and 7 days of restriction and extra duty.  

8.  On 6 December 1977, the applicant accepted NJP for being absent without leave (AWOL) from 15 October through 18 November 1977.  His punishment for this offense was a reduction to PV1, a forfeiture of $92.00, and 14 days extra duty and restriction.

8.  On 15 February 1978, the applicant was advised that separation action was being initiated on him under the provisions of chapter 13, Army Regulation 
635-200, by reason of unsuitability (apathy, attitudes or inability to expend effort constructively-traits).  It was noted that the applicant suffered from a personality disorder; however, the applicant was informed that the specific reason for his separation was Unsuitability (apathy, defective attitudes, or inability to expend effort constructively).

9.  On 22 February 1978, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation, its effects, and of the rights available to him.  Subsequent to this counseling, the applicant waived his right to have his case considered by a board of officers, his right to a personal appearance before a board of officers, and his right to consulting counsel.  He also elected not to submit a statement in his own behalf.

10.  On 28 February 1978, the separation authority approved the separation action and directed the applicant receive a GD.  On 9 March 1978, the applicant was separated accordingly.  The separation document (DD Form 214) he was issued at the time shows he completed a total of 2 years, 9 months, and 2 days of active military service and that he had accrued 29 days of time lost due to AWOL.  It also shows he held the rank of PV1 at the time of his separation.  


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

12.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that
time, applied to separation for unfitness and unsuitability.  Unsuitability separations could be based on one of the following factors:  1) Inaptitude; 2) Personality Disorder; 3) Apathy; and 4) Homosexual Tendencies.  The separation authority could authorize either an HD or GD for members separated for Unsuitability.  Although an HD was mandated for members being separated for a personality disorder, a GD was normally appropriate for members separating for apathy.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim that his command had informed him that separation from the military for personality disorder warranted an HD and that he would be discharged with an HD was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record further confirms the applicant was processed for and separated for Unsuitability based on apathy, and not based on a personality disorder.  In accordance with the applicable regulation in effect at the time, all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of undistinguished service.  

3.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal a disciplinary history that clearly diminished the quality of his overall record of service below that meriting a fully honorable discharge.  

4.  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.


5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 March 1978.  Therefore, the time for him to file a request for correction of any error or injustice expired on 8 March 1981.  He failed to 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_  _x_  _x __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




____x__
          CHAIRPERSON




INDEX

CASE ID
AR20060014306
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/10
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
1978/03/09
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON
Personality Disorder Ch 13
BOARD DECISION
Deny
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110
2.

3.

4.

5.

6.