IN THE CASE OF:	  

		BOARD DATE:	        26 MARCH 2009

		DOCKET NUMBER:  AR20090001236 


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 that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states that he suffers from Post-Traumatic Stress Disorder (PTSD) as a result of his Army service.  He goes on to state that he was assaulted during his tour on active duty and had drugs forced into him that have now resulted in his being diagnosed with hepatitis - C, diabetes type II, and paranoid schizophrenia.  He also states that he is sterile due to contracting gonorrhea.  

3.  The applicant provides a six-page letter explaining his service, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and two documents from his medical records indicating that he was treated for gonorrhea and a probable appendicitis.

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 2 January 1951 and enlisted in the Regular Army in Houston, Texas on 25 September 1972 for assignment to Europe and training in the clerical career management field.  He completed all of his training at Fort Polk, Louisiana and was awarded military occupational specialty (MOS) 71B (clerk typist).

3.  He was transferred to Germany on 14 March 1973 and was assigned to the 130th General Hospital in Nuernberg for duty as a clerk typist in the orthopedic clinic.

4.  On 5 April 1973, nonjudicial punishment (NJP) was imposed against the applicant for failing to go to at the time prescribed to his appointed place of duty on 29 and 30 March 1973.  His punishment consisted of a forfeiture of pay.  He was transferred to the orderly room for duty on 26 April 1973.

5.  On 23 May 1973, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty on seven separate occasions.  His punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay.

6.  On 1 August 1973, NJP was imposed against him for unlawfully carrying a concealed weapon (switchblade knife).  His punishment consisted of a forfeiture of pay and extra duty.

7.  The applicant was counseled by his commander on at least nine separate occasions during the period 8 April to 9 August 1973 regarding his failing to go at the time prescribed to his appointed place of duty and his lack of interest in his military duties.  The most significant of those counseling sessions was on
20 June 1973, when the commander counseled the applicant regarding his being absent without authority (AWOL) on 18 June 1973 and still having a knife.  He also indicated that the applicant still admitted to using drugs occasionally (restricted to pot [marijuana]) and the applicant asked the commander who he should see about starting to sell drugs.



8.  On 2 August 1973, the applicant was admitted to the hospital for treatment of drug dependence (opiates) and gonorrhea.  He admitted that he was using heroin, speed, and hashish and he indicated that he had used drugs sporadically over the years.  He was also enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  He was treated, detoxified, and discharged to his unit in good condition on 7 August 1973.

9.  On 6 September 1973, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5b (3) for unsuitability due to apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. 

10.  The applicant waived all of his rights and the appropriate authority approved the recommendation for discharge on 14 September 1973 and directed that he be furnished a General Discharge Certificate.

11.  Accordingly, the applicant was transferred to Fort Dix, New Jersey, where he was discharged under honorable conditions on 1 October 1973, under the provisions of Army Regulation 635-200, paragraph 13-5b (3), due to apathy and inability to expend effort constructively.  He had served 1 year and 7 days of total active service.

12.  There is no indication in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of her discharge within that Board’s 15-year statute of limitations.  

13.  Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for apathy and who were unsuitable for further military service.  An individual could be separated for apathy if it was determined that the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  A discharge under honorable conditions is normally considered appropriate.

14.  Paragraph 3-7a of Army Regulation 635-200 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.  


15.  Paragraph 3-7b of the same regulation 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’s contentions have been noted; however, not only are they not supported by evidence submitted by the applicant or the evidence of record, but they are also not sufficiently mitigating to warrant relief when compared to his overall undistinguished record of service during such a short period of service. His records simply do not show that he was assaulted or that drugs were forced on him during his service.  In fact, the evidence of record clearly shows that he had been using drugs prior to entering the service and that he admitted his use while in the service.

2.  The applicant’s administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, 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.

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)                                         AR20090001236



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001236



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1