IN THE CASE OF:	  

		BOARD DATE:	        27 August 2009

		DOCKET NUMBER:  AR20090006887 


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 an upgrade of his under honorable conditions (general) discharge to fully honorable.

2.  The applicant states that having a general discharge restricts him from receiving certain veteran favors and that the reason for his discharge was prejudice. 

3.  The applicant did not provide any additional documentary evidence 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's records show he enlisted in the Regular Army for a period of 3 years on 14 May 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty 67X (Heavy Lift Helicopter Repairer).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records show that he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) and the Expert Marksmanship Qualification Badge with Grenade Bar.

4.  On 19 April 1978, the applicant pleaded guilty at a Special Court-Martial to one specification of committing an assault on another Soldier by pointing at him with a dangerous weapon on or about 28 January 1978.  The Court sentenced him to a reduction to private (PVT)/E-1, a forfeiture of $100.00 pay for 2 months, and confinement at hard labor for 2 months.  The sentence was adjudged on 19 April 1978 and approved on 11 May 1978.

5.  On 7 May 1979, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order on or about 19 April 1979.  His punishment consisted of a reduction to private (PV2)/E-2 (suspended for 180 days) and 14 days of extra duty.  However, the suspension of the punishment of reduction to PV2/E-2 was vacated on 6 June 1979 and the unexecuted portion of the punishment was ordered executed.

6.  On 16 November 1979, the Comanche County District Court, OK, issued a warrant for arrest against the applicant for failure to appear in court for the civilian charge of driving without a driver’s license on his possession. 

7.  On 16 November 1979, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) on or about 13 November 1979.  His punishment consisted of a reduction to PVT/E-1 (suspended for 60 days) and 14 days of extra duty.

8.  On 11 December 1979, the applicant was apprehended by civil authorities for the civilian charge of no driver’s license in possession and transported to the Comanche County jail.   

9.  On an unknown date in December 1979, the applicant’s immediate commander received a letter from a civilian finance company alleging that the applicant was granted a loan on 9 October 1979 to help him in an emergency and agreed to repay the loan in two monthly installments; however, he failed to do so and as such was issued a letter of indebtedness. 
10.  On 2 February 1980, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his unsatisfactory performance, little respect for authority, failure to respond to counseling, failure to show promotion potential, and several instances of misconduct.  The applicant was furnished with a copy of the bar; however, he elected not to submit a statement on his own behalf.  

11.  On 7 March 1980, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on or about 5 March 1980.  His punishment consisted of a reduction to PV2/E-2 and a forfeiture of $100.00 pay for 2 months. 

12.  On 19 February 1980, by memorandum, the applicant's immediate commander notified the applicant of his intent to recommend his separation from the Army under the provision of chapter 13 of Army Regulation 600-200 (Personnel Separations) by reason of inaptitude, apathy, defective attitude, and inability to expend effort constructively.

13.  On an unknown date, the applicant acknowledged receipt of the letter of notification of separation action in accordance with chapter 13 of Army Regulation 635-200.  He further consulted with legal counsel and elected to appear before a board of officers.  

14.  On an unknown date, the applicant’s intermediate commander recommended approval of the applicant’s discharge.  He further remarked that it was apparent that the applicant failed to meet acceptable standards for continued military service. 

15.  On 7 March 1980, the applicant was notified that a board of officer would convene to determine whether he should be eliminated from the service for misconduct.  The applicant acknowledged the notification on the same date.

16.  On 2 April 1980, a board of officer convened at Fort Sill, OK, with the applicant and his counsel present.  The board recommended the applicant’s elimination from the service under the provisions of chapter 13 of Army Regulation 635-200 with the issuance of a General Discharge Certificate.

17.  On 21 April 1980, the separation authority approved the applicant's discharge from the Army for inaptitude and apathy and directed that he receive a General Discharge Certificate.  Accordingly, on 28 April 1980, the applicant was discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged for unsuitability-apathy, defective attitude or inability to expend effort constructively in accordance with chapter 13 of Army Regulation 635-200, with an Under Honorable Conditions (General) Discharge.  This form also shows that she completed 2 years, 11 months, and 15 days of creditable active military service and had 52 days of lost time.

18.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 
15 year statute of limitations.

19.  Army Regulation 635-200, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  Action was to be taken to discharge an individual under chapter 13 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.   A general or honorable discharge was considered appropriate.  

20.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant's records reveal a history of misconduct which includes one instance of a court-martial, three instances of NJP, a bar to reenlistment, one instance of AWOL, one instance of civilian arrest, a letter of indebtedness, and lost time.  Accordingly, his chain of command initiated separation action against him.  There is no indication that the applicant suffered any prejudice or that he addressed such issue with his chain of command or other support channels. 



3.  The evidence of record shows the applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.  

4.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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, 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.




      _______ _   _ 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)                                         AR20090006887





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ABCMR Record of Proceedings (cont)                                         AR20090006887



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