RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 June 2007
      DOCKET NUMBER:  AR20070000126


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. LaVerne M. Douglas            |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |Member               |

      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 absent without leave (AWOL)
record indicates only minor or isolated offense and his ability to serve
was impaired by marital, family, child care problems, personal, financial
problems and psychiatric problems.  He also states that he tried to apply
for a hardship discharge but was unfairly told to forget it and he should
have gotten a medical discharge because he was not medically qualified to
serve.  He finally claims his discharge was improper because the command
did not follow the discharge regulations.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 21 June 1982, the date of his discharge.  The application
submitted in this case is dated 11 December 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 2 September 1980.  He was trained in and awarded
military occupational specialty (MOS) 11C (Indirect Fire Infantryman) and
private/E-2 (PV2) is the highest rank he attained while serving on active
duty.

4.  The applicant's record shows that during his active duty tenure, he
earned the Army Service Ribbon and Marksman Marksmanship Qualification
Badge with Rifle Bar.  His record documents no acts of valor, significant
achievement, or service warranting special recognition.

5.  The applicant's record also shows that he accrued 109 days of time lost
during seven separate periods of AWOL between 9 December 1981 and 21 March
1982.  It also shows that he accepted non-judicial punishment under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
28 September 1981, for being AWOL from 11 through 15 September 1981 and for
making a false official statement on 15 September 1981.  His punishment for
these offenses was a reduction to private/E-1 (PV1) and 14 days of extra
duty.

6.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any
documents indicating that the applicant ever attempted to apply for a
hardship discharge, or that he was denied the opportunity to do so.  The
MPRJ is also void of any medical treatment records or other documents that
show the applicant ever suffered from, or was ever treated for a disabling
medical condition during his active duty tenure.

7.  On 24 May 1982, the unit commander notified the applicant he intended
to recommend the applicant for discharge under the provisions of paragraph
13-4c, Army Regulation 635-200, for apathy.

8.  On 25 May 1982, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action and its
effects, the rights available to him, the effect of waiving those rights,
and the effect of discharge.  Subsequent to receiving this legal counsel,
the applicant acknowledged the counseling and his understanding of the
basis for the discharge and of the possible effects of such a discharge.

9.  On 28 May 1982, the unit commander submitted a recommendation for the
applicant's discharge for unsuitability based on apathy.  He cited the
applicant's unsatisfactory duty performance and lack of motivation to be a
Soldier as the basis for taking the action.

10.  On 9 June 1982, the Chief, Administrative Law, Officer of the Staff
Judge Advocate, completed a review the discharge proceedings pertaining to
the applicant for legal sufficiency.  This official indicated that
separation packet on the applicant was legally sufficient.

11.  On 14 June 1982, the separation authority approved the applicant's
discharge under the provisions of paragraph 13-4c, Army Regulation 635-200,
by reason of unsuitability and directed the applicant receive a GD.  On 21
June 1982, the applicant was discharged accordingly.

12.  The separation document (DD Form 214) issued to the applicant on the
date of his discharge, 21 June 1982, shows he completed a total of 1 year,
5 months and 7 days of creditable active military service and had accrued
109 days of time lost due to AWOL.

13.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within that
board's 15-year statute of limitations.

14.  Chapter 13, Army Regulation 635-200, in effect at the time, set forth
the basic authority, established the policy, and prescribed the procedures
for separating members for unsuitability (apathy, defective attitude and
inability to expend effort constructively).  Members separating under this
provision of the regulation could receive either and HD or GD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge processing was improper,
that he was denied the opportunity to apply for a hardship discharge and
that he should have been medically discharged were carefully considered.
However, there is insufficient evidence to support these claims.  The
evidence of record provides no documentary evidence that indicates the
applicant was ever denied the opportunity to apply for a hardship discharge
or that he ever suffered from or was treated for a disabling medical
condition that would have supported his separation processing through
medical channels while serving on active duty.

2.  Further, the evidence of record confirms the applicant's separation
packet was reviewed and found legally sufficient by competent legal
authority and that his separation processing was accomplished in accordance
with the applicable regulation.  All requirements of law and regulation
were met, and his rights were fully protected throughout the separation
process.

3.  The applicant's contention that his ability to serve was impaired by
marital, family, child care problems, personal, financial problems and
psychiatric problems was also carefully considered.  However, there is also
insufficient evidence to support this claim.  The record provides no
indication that the conditions referred to by the applicant significantly
impaired his ability to serve, or that they were the reason for or
mitigated his documented misconduct.  The applicant's extensive AWOL record
and disciplinary history clearly diminished the quality of his service
below that meriting a fully honorable discharge.  Therefore, there is an
insufficient evidentiary basis to support an upgrade of his discharge at
this late date.
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 21 June 1982, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 20 June 1985.  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

__LMD __  __EEM__  __RMN__  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.




                                  _____LaVerne M. Douglas____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20070000126                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/06/12                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1982/06/21                              |
|DISCHARGE AUTHORITY     |AR 635-200 C13                          |
|DISCHARGE REASON        |Unsuitability (Apathy)                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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