IN THE CASE OF:	  

		BOARD DATE:	       9 December 2008

		DOCKET NUMBER:  AR20080012256 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of the narrative reason for separation from "Unsuitability-Apathy Defective Attitude or Inability to Expend Effort Constructively" to something more favorable.

2.  The applicant states that prior to and at the time of his separation he was unfairly picked on by his company commander who was not willing to deal with the family problems he was having at the time.

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  certificate of achievement, dated 30 January 1979;

b. certificate of accomplishment, dated 5 January 1979;

	c.  letter, dated 30 July 1990, showing completion of an on-the-job training program for vehicle maintenance; and

	d.  two letters of appreciation, dated 29 January 1980 and 20 August 1980.

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 records show he enlisted in the Regular Army and entered active duty on 19 May 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  His records also show he executed an 8-month extension and a 3-year reenlistment in the Regular Army.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's records show he was awarded the Army Service Ribbon, the Overseas Service Ribbon, the Good Conduct Medal, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant achievements or service warranting special recognition.

4.  The applicant’s records reveal an extensive history of negative counseling as well as a history of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 14 July 1978, for disobeying a lawful order, on or about 29 June 1978 – his punishment consisted of 14 days of restriction, 14 days of extra duty, and reduction to private (PVT)/E-1.  On 14 July 1978, he appealed his punishment to the next superior authority; however, on 4 August 1978, his appeal was denied;

	b.  on 14 September 1978, for disobeying a lawful order, on or about 3 August 1978 – his punishment consisted of 14 days of restriction, 14 days of extra duty, and forfeiture of $103.00 pay for one month; and

	c.  on 12 July 1979, for assaulting another Soldier by striking him with his fist on or about 12 July 1979 – his punishment consisted of 14 days of extra duty, 14 days of restriction, and reduction to private (PV2)/E-2.

5.  On 2 September 1979, the applicant was involved in assault, larceny, and wrongful possession of marijuana and was apprehended by German authorities.  However, the German prosecutor waived the right to exercise jurisdiction in the applicant’s case and he was turned over to U.S. military authorities.
6.  On 26 August 1981, the applicant’s immediate commander initiated a Bar to Enlistment/Reenlistment Certificate against the applicant citing his three instances of nonjudicial punishment and extensive history of counseling.  His bar was subsequently approved by his battalion commander on 8 February 1982.

7.  On 6 October 1981, the applicant’s immediate commander initiated elimination from the service action against the applicant under the provisions of chapter 13-4c of Army Regulation (AR) 635-200 (Personnel Separations) for unsuitability.  The immediate commander cited the applicant’s apathy (lack of appropriate interest), defective attitude, and inability to expend effort constructively.  He further added that the applicant had problems with his entire chain of command and was counseled on 19 occasions.  He also worked in different platoons but was unable to meet minimum standards in any of the platoons and resisted every opportunity to rehabilitate himself.

8.  On 18 November 1981, the applicant's immediate commander notified the applicant of the action to eliminate him from the Army for unsuitability by reason of apathy, defective attitude, and inability to expend efforts constructively.

9.  On 19 November 1981, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for unsuitability, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived appearance before a board of officers, and elected not to submit any statements on his own behalf.  The applicant further acknowledged 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.

10.  On 29 January 1982, the applicant’s intermediate commander recommended approval of the applicant’s elimination from the Army and remarked that he (the applicant) continued to exert a disruptive influence on the unit and the community with his attitude and behavior.

11.  On 10 February 1982, the separation authority approved the applicant's discharge for unsuitability under the provisions of chapter 13 of AR 635-200 and directed that he receive a General Discharge Certificate.  Accordingly, the applicant was discharged on 18 February 1982.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he was discharged under the provisions of chapter 13-4c of AR 635-200 with a character of service of under honorable conditions.  This form further shows he completed 4 years and 9 months of creditable active military service.  Item 28 (Narrative Reason for Separation) of this form shows the entry "Unsuitability-Apathy Defective Attitude or Inability to expend Effort Constructively."

12.  The applicant submitted two certificates, dated on 5 January 1979 and 30 January 1979, that show he was commended on his performance and significant contributions to mission accomplishment, as well as two letters of appreciation, dated 29 January 1980 and 20 August 1980, that also show he was commended for his contributions and outstanding performance.

13.  There is no indication in the applicant’s record that he was undergoing any personal problems or that he was unfairly picked on by his chain of command.

14.  Chapter 13 of AR 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 an honorable or a general discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason for separation should be corrected.

2.  There is no evidence in the applicant's records and the applicant did not provide any substantiating evidence that shows he suffered any personal problems or that his acts of indiscipline resulted from personal problems.  Additionally, the applicant's records do not reflect any instances or indication of mistreatment or the alleged issue of being picked on with his chain of command or with any supporting channels.

3.  The applicant had an extensive history of disciplinary problems including three instances of nonjudicial punishment, a bar to reenlistment, an arrest by civil authorities, and multiple instances of negative counseling.  Accordingly, his chain of command initiated separation action against him in accordance with chapter 13 of AR 635-200 for unsuitability (apathy, defective attitude or inability to expend effort constructively).  Absent his apathy, defective attitude, and/or inability to expend effort constructively, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his apathy, defective attitude, and/or inability to expend effort constructively.  The only valid narrative reason for separation permitted under that paragraph is "unsuitability-apathy, defective attitude and/or inability to expend effort constructively."
4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, 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.  Therefore, he is not entitled to relief.

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.


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      _________________________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080012256



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ABCMR Record of Proceedings (cont)                                         AR20080012256



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