IN THE CASE OF:	

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090011664 


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 upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states that he believes it is time that his discharge is upgraded because the time he spent was a trying time for him as a young person and he should have a second chance.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) 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 5 January 1977 for a period of 3 years, training as a cannon crewman, and assignment to the 9th Infantry Division at Fort Lewis, WA.  He completed his one station unit training at Fort Sill, OK and he was awarded military occupational specialty (MOS) 13B (cannon crewman).  He was subsequently reassigned to Fort Lewis for his first and only duty assignment.

3.  On 7 October 1977, nonjudicial punishment (NJP) was imposed against the applicant for missing movement with his unit.  His punishment consisted of a reduction to the rank/grade of private (PV1)/E-1 and a forfeiture of pay.

4.  On 23 November 1977, NJP was imposed against the applicant for participating in a breach of peace by participating in a fist fight.  His punishment consisted of a forfeiture of pay.

5.  On 30 November 1978, NJP was imposed against the applicant for two specifications of failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay and extra duty.

6.  During the period 19 May 1977 to 8 December 1978, the applicant was counseled on at least nine occasions for disobeying lawful orders, failing to follow instructions, missing formations, failing to prepare for inspection, leaving his place of duty without authorization, being absent from his place of duty, failing to go at the time prescribed to his appointed place of duty, failing to follow orders and poor attitude, and for being late for training on seven occasions.

7.  On 13 December 1978, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsuitability due to apathy.  He cites as the basis for his recommendation the applicant’s disciplinary record and his failure to respond to numerous counseling sessions, his lack of appropriate interest, defective attitude, and inability to expend efforts constructively.

8.  On 2 January 1979, after consulting with counsel, the applicant waived all of his rights and he elected not to submit a statement in his own behalf.

9.  The appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.



10.  Accordingly, on 16 January 1979, he was discharged with a general, under honorable conditions discharge under the provisions of Army regulation 635-200, chapter 13, for apathy.  He had served 2 years and 11 days of total active service.

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

12.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  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 would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A discharge under honorable conditions was normally considered appropriate.

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 (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 therefore were appropriate under the circumstances.
 
3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating considering the fact he was counseled on numerous occasions regarding his repeated misconduct and defective attitude, yet he continued to demonstrate an apathetic attitude toward his duties and service.  Accordingly, his service does not rise to the level of a fully honorable discharge and is considered to be 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)                                         AR20090011664



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ABCMR Record of Proceedings (cont)                                         AR20090011664



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