IN THE CASE OF:	  

		BOARD DATE:	       10 September 2009

		DOCKET NUMBER:  AR20090007229 


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 her under honorable conditions (general) discharge to fully honorable.

2.  The applicant states that her discharge was not based on any misconduct on her part but rather on her own request for separation.  She adds that her DD Form 214 (Report of Separation from Active Duty) does not list the authority and reason for her discharge.  She also adds that her service was honorable but she failed to complete the term of her enlistment.  She now feels the character of service she received was unjust and that she should have received an honorable discharge.  She concludes that after her discharge, she completed her college education and has been a professional pharmacist for 20 years.

3.  The applicant provides a copy of her DD Form 214, dated 1 August 1978, in support of her 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 she enlisted in the Regular Army for a period of 3 years on 24 May 1977.  She completed basic combat and advanced individual training and was awarded military occupational specialty 63B (Power Generator and Wheeled Vehicle Mechanic).  The highest rank/grade she attained during her military service was private (PV2)/E-2. 

3.  The applicant’s records also show she served in Germany from on or about 5 November 1977 to on or about 24 July 1978.  Her awards and decorations include the Marksman Marksmanship Qualification Badge with Rifle Bar. 

4.  On 31 March 1978, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting herself without authority and with intent to avoid field exercises on or about 6 March 1978.  Her punishment consisted of a reduction to private (PVT)/E-1 (suspended until 21 May 1978), a forfeiture of $50.00 pay for 1 month, and 2 days of extra duty.  She appealed her punishment on 31 March 1978; however, the next superior authority denied her appeal on 18 April 1978. 

5.  On 13 July 1978, the applicant underwent a psychiatric evaluation due to her discontent with the Army.  She related that the time she was away from her husband was straining but even after he joined her, she remained discontent.  She also indicated that she desired to be discharged and stated that she was willing to go to any extremes to accomplish such an act, to include acting out behavior.  She was diagnosed with an inadequate personality and was cleared for any administrative actions deemed appropriate by her chain of command.

6.  On 18 July 1978, by memorandum, the unit chaplain stated that he was familiar with the applicant’s problems and that the applicant had come to him to discuss her inability to adjust to military life.  She told him that she was having difficulty with her co-workers and could not adjust.  She was hoping her assignment to Germany would aid her in adjusting; however, this was not the case and she did not make any progress even when her husband joined her in Germany.  The chaplain added that at the time, he felt the applicant was suffering from depression which was affecting her character.  He recommended her administrative separation.  



7.  On 18 July 1978, the applicant was counseled by her squad leader regarding her attitude about the Army and overall performance.  During the counseling session, she indicated that the Army was not what she expected and that her primary reason for joining the Army was to complete her education.  

8.  On 20 July 1978, the applicant’s immediate commander notified the applicant of his (the commander's) intent to initiate action to affect her (the applicant's) discharge from the Army under the provisions of chapter 13-4c of Army Regulation 635-200 (Personnel Separations) by reason of unsuitability. 

9.  On 20 July 1978, the applicant acknowledged receipt of the notification of her pending separation action.  She was advised by counsel of the basis for the contemplated action to separate her for unsuitability under the provisions of Army Regulation 635-200.  She waived consideration of her case by a board of officers, waived personal appearance before a board of officers, waived representation by counsel, and elected not to submit a statement.  The applicant further indicated that she understood that she might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.  She further understood that in the event of the issuance of an undesirable discharge, she might be ineligible for many or all benefits as a veteran under both Federal and State laws, and may encounter substantial prejudice in civilian life.

10.  On 20 July 1978, the applicant’s immediate commander initiated a recommendation for discharge against the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsuitability (personality disorder).  The immediate commander remarked that the applicant had not been able to adjust to military life.  She could not accept responsibility and needed constant supervision to accomplish any task assigned to her.  She abused the right to go on sick-call and often used it to avoid physical training and morning details.  Her negative attitude dominated her daily activities to an extent that she could not get along with her peers or supervisors.  She was reassigned between sections but section leaders complained that she was a deterrent to the mission of the unit in that she was not a willing worker and her attitude demoralized her peers.  

11.  On 26 July 1978, the separation authority approved the applicant’s discharge under the provisions of paragraph 13-4c of Army Regulation 635-200 by reason of apathy and directed she be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 1 August 1978.  The DD Form 214 she was issued shows she was discharged under the provisions of paragraph 13-4c of Army Regulation 635-200 and was given an SPD (Separation Program Designator) of "JMJ" (unsuitability-apathy).  She completed 1 year, 2 months, and 8 days of creditable active military service.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within that Boards 15-year statute of limitations.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to inaptitude, personality disorder, apathy and homosexuality.  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.  The regulation requires that separation action will be taken, when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory soldier.  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.

14.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  Army Regulation 635-5-1 (Separation Program Designator Codes) shows the reason for discharge based on separation code "JMJ" is “unsuitability-apathy, defective attitude or inability to expend effort constructively."  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her general discharge should be upgraded.

2.  Contrary to the applicant's contention that she requested separation on her own part, the evidence of record shows the applicant was unable to adjust to military life and displayed unsuitability-apathy, a negative attitude and/or an inability to expend effort constructively.  Accordingly, her immediate commander initiated separation action against her.  


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 her 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 applicant’s post service academic and professional achievements are noted.  However, the applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of her discharge.  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 did not submit evidence that would satisfy this requirement. Therefore, there is insufficient evidence to grant the applicant's requested relief in this case.

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)                                         AR20090007229



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ABCMR Record of Proceedings (cont)                                         AR20090007229



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