RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  14 February 2008
	DOCKET NUMBER:  AR20070013208 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Carmen Duncan

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 that his general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that at the time of his discharge he was immature and that he suffered from prejudices which contributed to his poor performance while he was in the service.  He also states that his discharge has caused him problems in obtaining a job for many years.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 3 June 1981 and a letter of support, dated 10 September 2007.

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 was born on 6 December 1957.  He enlisted in the Regular Army on 23 May 1979, for a three year term of service.  He successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 16D (Hawk Missile).

3.  On 11 January 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for assaulting a fellow Soldier with broken beer bottle.

4.  On 28 March 1980, the applicant accepted NJP under Article 15, UCMJ for striking a fellow Soldier on the head with a metal buckle of a belt.



5.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates: 26 February 1980 for being drunk in the billets and assaulting several Soldiers with his fist and 6 June 1980 for sleeping on duty.  

6.  On 6 November 1980, the applicant accepted NJP under Article 15, UCMJ for drinking on duty.

7.  On 20 January 1981, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, paragraph 13-4c for unsuitability.  The reasons cited by the commander were the applicant’s numerous counselings regarding his military and personal conduct, job performance, military bearing, misconduct and attitude coupled with Article 15s.  His apathetic attitude towards the U.S. Army is displayed in a malicious manner as to cause unrest with all the battery personnel. The applicant had incited several incidents which could never be condoned.  A lackadaisical attitude towards his assigned duties and the U.S. Army was constantly displayed.  

8.  On 23 January 1981, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant requested counsel, requested to be heard by a board of officers, and declined to submit a statement on his own behalf.

9.  DA Form 1574 (Report of Proceedings by Investigating Officer (Board of Officers)), shows the board was held on 7 May 1981 and the board members recommended the applicant be discharged from the service because of apathy, aggressive behavior and failure to respond to rehabilitation, with issuance of a General Discharge Certificate. 

10.  On 21 May 1981, the appropriate authority approved the recommendation and directed the applicant receive a General Discharge Certificate under the provisions of chapter 13 of Army Regulation 635-200 for unsuitability, apathy, attitude, defective or inability to expend effort constructively.  On 3 June 1981, he was separated from the service after completing 2 years and 11 days of creditable active service with no lost time.

11.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 27 September 1983, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB unanimously voted that the applicant's discharge was proper and equitable.
12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-4c, then in effect, contained the policy and outlined the procedures for separating individuals for unsuitability when they showed lack of appropriate interest or other defective attitudes.  The presence of physical or mental disease or defect-producing impairment of function insufficient to warrant separation under the provision of Army Regulation 635-40 and related regulations was no bar to discharge for unsuitability.

13.  Army Regulation 635-200, paragraph 3-7a, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was young and immature at the time and that he suffered from prejudices which contributed to his poor performance.  Records show that the applicant was age 21 years, 5 month, 18 days at the time his active service began and age 23 years, 5 months, and 29 days at the time of his discharge.  After his first Article 15, he knew there would be consequences for his actions.  Therefore, his contention that he was young at the time of his offenses does not mitigate his indiscipline.  There is no evidence and the applicant has not provided evidence that shows he suffered from prejudices or was discriminated against during his period of service that would affect his performance.  Therefore, there is no basis for this argument.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's records show that he received three Articles 15, had numerous general counselings, had three failures to repair, had been drunk on duty, and had a poor duty performance.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JTM       ___CD__  __RMN__   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.




     ___John T. Meixell____
          CHAIRPERSON




INDEX

CASE ID
AR20070013208
SUFFIX

RECON

DATE BOARDED
14 FEBRUARY 2008
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.5000.0000
2.

3.

4.

5.

6.