IN THE CASE OF:	  

		BOARD DATE:	        29 January 2009

		DOCKET NUMBER:  AR20080017368 


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, in effect, an upgrade of his general discharge to an honorable discharge.

2.  The applicant states that he was on the Army boxing team and was not allowed to express himself.  He adds that a psychiatrist determined that he had a defective attitude and that he was accordingly discharged.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 7 September 1982, in support of his request.

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 for a period of 3 years on 9 September 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 67V (Observation Scout Helicopter Repairer).  His records also show he executed a 3-year reenlistment in the Regular Army on 6 March 1981.  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 Good Conduct Medal, the Aircraft Crewman Badge, the Army Service Ribbon, the Overseas Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.  The applicant's records do not show any significant achievements/accomplishments during this period of military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 14 April 1982, for being absent without leave (AWOL) during the period from on or about 6 April 1982 until on or about 7 April 1982.  His punishment consisted of reduction to private first class (PFC)/E-3 (suspended for 90 days), a forfeiture of $50.00 pay per month for one month, and 14 days of extra duty.  However, on 2 July 1982, the suspension of punishment of reduction to PFC was vacated and ordered executed; and 

	b.  on 21 July 1982, for being AWOL during the period from on or about
3 June 1982 until on or about 30 June 1982.  His punishment consisted of reduction to private (PV1)/E-1, and 30 days of extra duty.

5.  On 27 July 1982, the applicant underwent a mental status evaluation at the U.S. Army Health Clinic, Fort Clayton, Panama.  The military doctor indicated that the applicant had no significant mental illness, he was mentally responsible, he was able to distinguish right from wrong, he was able to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

6.  On 6 August 1982, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 13-4c of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The discharge was specifically recommended for unsuitability because of apathy, defective attitude, or inability to expend efforts.  


7.  On 9 August 1982, the applicant acknowledged receipt of the commander's notification to separate him and on 11 August 1982 he consulted with legal counsel.  He was advised of the basis for the contemplated separation under the provisions of chapter 13 of Army Regulation 635-200, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  

8.  The applicant further indicated that he understood that he could encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He also submitted a statement and indicated that he did not wish to continue military service; however, he was concerned about his character of service.

9.  On 13 August 1982, the applicant’s immediate commander initiated separation action against him in accordance with AR 635-200 because of unsuitability.  The immediate commander remarked that the applicant exhibited strong traits of apathy and consistently failed to conform to standards of soldiering and failed to expend any constructive efforts to rectify his declining performance as a Soldier.  The immediate commander also stated that further retention in the Army would have resulted in serious disciplinary problems for the command.  

10.  On 16 August 1982, the separation authority approved the applicant’s discharge under the provisions of chapter 13, Army Regulation AR 635-200 by reason of unsuitability, waived additional rehabilitative efforts, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 7 September 1982.  The DD Form 214 he was issued confirms he was discharged with a characterization of service of under honorable conditions (general).  This form further confirms he completed a total of 4 years, 11 months, and 2 days of creditable military service, and had 27 days of lost time.

11.  There is no indication 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 basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for discharging enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the 
individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.

13.  Army Regulation 635-200, paragraph 3-7a, also 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  Contrary to the applicant’s contention that he was discharged because a psychiatrist determined that he had a defective attitude, the evidence of record shows that the applicant underwent a mental status evaluation in conjunction with his discharge and that he was found mentally responsible, able to distinguish right from wrong and adhere to the right, and had no significant mental illness.

3.  The evidence of record shows that the applicant displayed a pattern of apathy, defective attitude, and inability to expand efforts, and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards.  He also had a history of misconduct including two instances of nonjudicial punishment for AWOL.  Accordingly, his immediate commander initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  There does not seem to be an error or an injustice in his discharge.

4.  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 did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant him an upgrade of his 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.


															XXX
      _______________________
               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)                                         AR20080017368



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ABCMR Record of Proceedings (cont)                                         AR20080017368



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