IN THE CASE OF:	

		BOARD DATE:	18 August 2009  

		DOCKET NUMBER:  AR20090004341 


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 under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states that his discharge should be reviewed and changed.  It was issued over 15 years ago.  He also states he needs to obtain Department of Veterans Affairs (VA) benefits.

3.  The applicant provides a police report and two character reference letters in support of his 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 enlisted in the Regular Army (RA) on 27 November 1979.  At the completion of basic combat and advanced individual training he was awarded military occupational specialty (MOS) 19E (armor crewman).  His highest rank/grade attained was specialist four (SP4)/E-4.  He was discharged on
21 December 1981 for immediate reenlistment.  

3.  The applicant reenlisted on 22 December 1981 for a period of six years.  

4.  During the period February 1982 through June 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on three separate occasions for offenses including disobeying lawful orders from his superior noncommissioned officer (NCO); failing to go at the time prescribed to his appointed place of duty; and absenting himself from his unit on 16 February 1982.

5.  On 25 June 1982, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsuitability - apathy, defective attitudes, or inability to expend efforts constructively.  The applicant was advised of his rights.  The unit commander stated that the applicant had demonstrated an inability to adjust to the military and to the  obey orders of his superiors.  The unit commander also stated that the applicant constantly failed to respond to repeated counseling by his superiors and it would be in the best interest of his unit and the U.S. Army that he be discharged from the service.  

6.  The applicant acknowledged receipt of the notification, consulted with legal counsel, and did not submit statements in his own behalf.

7.  On 23 July 1982, the separation authority approved the separation action, waived rehabilitation requirements, and directed issuance of a General Discharge Certificate.

8.  His service records show he was absent without leave (AWOL) from 18 July 1982 to 25 July 1982; however, there is no record of NJP for this period of unauthorized absence.

9.  The applicant was discharged on 12 August 1982 under the provisions of Army Regulation 635-200, paragraph 13-4c(2) by reason of unsuitability – apathy, defective attitude, or inability to expend effort constructively.  He had completed 2 years, 8 months, 8 days of total active military service with 8 days of lost time.

10.  The applicant provided two character reference letters in support of his claim.  The individuals described the applicant as a man of strong character, honest, hard working, respectful, and reliable.

11.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board (ADRB) within that board's 15-year statute of limitations.

12.  Chapter 13 of Army Regulation 635-200, 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.

13.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that his discharge should be reviewed and changed.  He also states that his discharge was issued over 15 years ago.  After review of the evidence of this case, the applicant has not presented sufficient evidence which warrants changing his general under honorable conditions discharge to fully honorable.

2.  The applicant's administrative discharge proceedings under the provisions of Army Regulation 635-200, paragraph 13-4c(2) were conducted in accordance with law and regulations applicable at that time.

3.  The applicant's service record shows he received three Article 15s and he was AWOL for 8 days during the period under review.  

4.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general, under honorable conditions.  

5.  The applicant's character references were noted; however, they are not sufficiently mitigating to warrant relief in this case.

6.  He also states that he needs to obtain VA benefits.  However, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant should contact his local VA office who can best advise him on his eligibility for VA benefits.

7.  There is no evidence of record which indicates the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's requested 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.



      __________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)                                         AR20090004341



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ABCMR Record of Proceedings (cont)                                         AR20090004341



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