RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20070019007


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 discharge be upgraded to an honorable discharge.

2.  The applicant states he came from a rich tradition of military service; his father, uncles, and grandfather served in the military.  He currently holds three discharge certificates; two honorable and one general.  He has tried before to upgrade his discharge and to enlist.  He would like for a reevaluation of his discharge.

3.  The applicant provides a copy of his separation document (DD Form 214).

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 record shows he enlisted in the Regular Army on 2 January 1981.  He completed the necessary training and was awarded the military occupational specialty (MOS) 75C (Personnel Management Specialist).

3.  Between 10 August 1981 and 15 April 1982 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey Standard Operating Procedures by not cleaning and arranging his room in a proper manner and for failing to go to his appointed place of duty.

4.  His personnel record shows he received several counseling statements from his chain of command concerning his overall job performance, lack of initiative, and his generally negative attitude, which resulted in an administrative intra-post rehabilitative transfer on 18 April 1981.  His record further shows the rehabilitative effort did not improve his behavior.  Therefore, the commander recommended his separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13-4c, by reason of unsuitability because of apathy, on 6 May 1982.

5.  On 20 May 1982, he received notification that he was being considered for separation under the provisions of Army Regulation 635-200, chapter 13 for reasons of unsuitability-apathy.  The applicant's commander said his recommendation was based on the fact that he had been punished under the provision of Article 15, UCMJ, on three separate occasions for failure to repair and failure to obey lawful written orders; his numerous counseling; and his apathetic attitude.

6.  He was advised of the rights available to him and the effects of a general discharge.  He was also informed that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He was advised of his right to counsel, his right to an administrative hearing by a board of officers, his right to submit a statement in his own behalf, and his right to be represented by counsel at hearing.  The commander also explained the applicant's waiver privileges and the procedures for withdrawal of a waiver.  The applicant waived his rights.  He further understood that he would be ineligible to apply for enlistment in the United States Army for a period of two years after discharge.

7.  On 21 May 1982, the recommendation for separation was approved by the appropriate authority.

8.  On 27 May 1982, the applicant was given a General Discharge Certificate by reason of unsuitability-apathy.  The DD Form 214 he was issued shows he had completed a total of 1 year, 4 months, and 26 days Net Active Service This Period and 2 years of Total Prior Active Service.

9.  Army Regulation 635-200 (Personnel Separations), chapter 13 applied to separation for unfitness and unsuitability.  At that time, 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.  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.

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

11.  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.

12.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge.

2.  His discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would tend to jeopardize his rights.  The evidence provides sufficient basis for an under honorable conditions discharge for unsuitability-apathy.

3.  The applicant states that he came from a rich tradition of military service, because his father, uncles, and grandfather served in the military.  Also, he holds three discharge certificates; two honorable and one general.  However, these statements are not sufficiently mitigating to upgrade a properly issued discharge.

4.  The chain of command counseled the applicant several times, which indicated they attempted to correct his behavior.


5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement; therefore, he is not entitled to an honorable discharge.

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

ABCMR Record of Proceedings (cont)                                         AR20070019007



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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