IN THE CASE OF:	  

		BOARD DATE:	       10 September 2009

		DOCKET NUMBER:  AR20090008166 


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 honorable.

2.  The applicant states that he suffers from post-traumatic stress disorder documented from Fort Ord, California, and that he does not believe that a fair hearing was held to determine his reason for discharge.

3.  The applicant provides no additional documents with 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 in Seattle, Washington, on 28 February 1974 for a period of 3 years and training as an aircraft armament subsystem mechanic.
3.  He completed his basic training after being recycled at Fort Ord and was transferred to Aberdeen Proving Ground, Maryland, to undergo his advanced individual training (AIT).

4.  The applicant was absent without leave (AWOL) from 17 June 1974 to 24 June 1974; however, the record is silent as to any punishment imposed.

5.  He again was AWOL from 10 July 1974 until 19 July 1974 when he was returned to military control at Fort Meade, Maryland, where nonjudicial punishment (NJP) was imposed against him for the AWOL offense on 19 August 1974.  His punishment consisted of a forfeiture of pay.

6.  He was subsequently transferred to an aviation battalion at Fort Campbell, Kentucky, on 5 September 1974.

7.  On 2 December 1974, NJP was imposed against the applicant for being AWOL from 16 November 1974 to 26 November 1974.  His punishment consisted of a reduction to the pay grade of E-1 (suspended for 60 days) and a forfeiture of pay.  The suspended punishment was vacated on 10 January 1975.

8.  On 10 January 1975, the applicant's commander initiated action to bar the applicant from reenlistment.  He cited as the basis for his recommendation the applicant's disciplinary record, his unsatisfactory conduct, one incident of insubordination to a noncommissioned officer and two incidents of failure to repair.  The applicant elected not to submit matters in his own behalf and the appropriate commander approved the bar to reenlistment on 15 January 1975.

9.  On 29 January 1975, NJP was imposed against the applicant for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay.

10.  On 24 March 1975, the applicant's commander initiated action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unsuitability due to apathy.  He cited as the basis for his recommendation the applicant's disciplinary record, his failure to respond to counseling and rehabilitative assignments, his indifference to military authority and his lack of motivation.

11.  After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

12.  The appropriate authority approved the recommendation on 1 April 1975 and directed that he be issued a General Discharge Certificate.

13.  Accordingly, he was discharged under honorable conditions on 7 April 1975 under the provisions of Army Regulation 635-200, chapter 13, for unsuitability due to apathy.  He had served 1 year and 9 days of total active service and had 36 days of lost time due to AWOL.

14.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-200, chapter 13 in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance 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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.
 
3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating considering his repeated misconduct and apathetic attitude toward his duties and service.  Accordingly, his service is properly characterized.

4.  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.



      _______ _ 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)                                         AR20090008166



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ABCMR Record of Proceedings (cont)                                         AR20090008166



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