IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20080020063 


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 on her DD Form 214 (Certificate of Release or Discharge from Active Duty). 

2.  The applicant states that the narrative reason for separation entered on her DD Form 214 is and was not an accurate depiction of her attitude and performance.  She states that she believes her separation may be retaliatory in nature. 

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

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 records show she enlisted in the Regular Army (RA) on 12 January 1982.  She completed the required training and was awarded military occupational specialty (MOS) 71P (flight operations coordinator).  The highest rank/grade she attained while serving on active duty was private (PV1)/
E-1.

3.  On 11 June 1982, a memorandum written by the battalion chaplain recommending the applicant for early separation indicates that since the first day that she arrived in the unit her only goal was to get out of the Army.  The chaplain stated that she was not able to adjust to barracks living, that she did not work well with the members of her section, and that she exhibited a fair degree of prejudice.  He further indicated that the applicant's desire to get out of the Army; her attitude in general; and her inability to work and live with those around her made it highly unlikely that she would ever be a productive Soldier.  Therefore, he strongly recommended that the applicant be discharged as soon as possible.

4.  Discharge records indicate the applicant was also counseled by her first line supervisor, the first sergeant, and the commander.  These counseling were unsuccessful in deterring the applicant from claiming that she would go absent without leave (AWOL) if she was not discharged.

5.  Records show that on 14 June 1982 the applicant's commander, after careful consideration of the applicant's performance of duty, conduct and/or review of the her official military records, recommended discharge for apathy due to her exhibition of total apathy towards the Army, her job, and barracks life.  Records show that on the same date the applicant was notified by her commander that he had recommended she be separated under the provisions of paragraph 13-4 of Army Regulation 635-200 (Personnel Separations – Enlisted Separations) for apathy and unsuitability.

6.  On 15 June 1982, the applicant acknowledged she had been advised by her consulting counsel of the basis for the contemplated action to accomplish her separation for unsuitability under the provisions of paragraph 13-4c of Army Regulation 635-200 and its effects; of the rights available to her; and the effect of any action taken by her in waiving her rights.  The applicant acknowledged that she understood that she may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to her.

7.  On 17 June 1982, the separation authority directed the applicant be discharged under the provisions of paragraph 13-4c of Army Regulation 635-200 and directed that she be issued a General Discharge Certificate.

8.  On 21 June 1982, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant confirms she completed a total of 5 months and 10 days of creditable active military service.  Item 26 (Separation Code) shows the entry "JMJ" and Item 28 (Narrative Reason for Separation) shows the entry "Unsuitability-apathy, defective attitude or inability to expend effort constructively." 

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 requires that before initiating separation action against a Soldier, commanders will ensure that the Soldier has received adequate counseling and rehabilitation.  Because military service is a calling different from any civilian occupation, a Soldier should not be separated when unsatisfactory performance is the sole reason for separation unless there have been efforts at rehabilitation.
  
10.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  It also states that for Item 28, the entry is based on regulatory or other authority and can be checked against the cross reference table in Army Regulation 635-5-1 (Personnel Separations – SPD Codes).

11.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of Department of Defense and the military services to assist in the collection and analysis of separation data.  The regulation in effect at the time stated, in pertinent part, that the SPD code of "JMJ" was used when the authority for involuntary discharge is Army Regulation 635-200, chapter 13, due to " Unsuitability-apathy, defective attitude or inability to expend effort constructively." 

DISCUSSION AND CONCLUSIONS:

1.  While the applicant contends that the narrative reason for discharge did not depict her attitude and performance, she has failed to provide evidence showing otherwise.  The applicant's records show she did not desire to remain in the 
RA.  Evidence shows that several attempts were made to counsel and rehabilitate the applicant toward productive Army service; however, these efforts were unsuccessful.  The applicant even stated that she would go AWOL if she was not discharged.

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

3.  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 that requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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
      
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)                                         AR20080020063



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ABCMR Record of Proceedings (cont)                                         AR20080020063



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