BOARD DATE:	  February 18, 2010

		DOCKET NUMBER:  AR20090014030 


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 he was constantly harassed by his company commander who wanted him discharged from the Army.

   a.  He states that he poisoned himself and he was sent to mental health services in the hospital at Seoul, Korea.  He adds that he was threatened with nonjudicial punishment (NJP) for being absent without leave (AWOL) while he was in the hospital having his stomach pumped.

   b.  He states that there was injustice involved in his separation processing.

3.  The applicant provides no 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 enlisted in the Regular Army on 13 June 1975 for 3 years.  Upon completion of training he was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On 30 August 1976, the applicant received NJP under Article 15, Uniform Code of Military Justice (UCMJ), for violating a lawful general regulation, leaving his appointed place of duty, and forging the signature of a medical specialist on an official document.  His punishment consisted of reduction to the rank/grade of private (PV2)/E-2, forfeiture of $99.00 for one month, and 14 days of restriction and extra duty.  On 9 September 1976, the punishment imposed in excess of forfeiture of $95.00 for one month was set aside.

4.  On 27 September 1976, the applicant received NJP under Article 15, UCMJ, for being AWOL from 24 to 26 September 1976 and failing to be present for the command alert formation.  His punishment consisted of reduction to private (PV1)/E-1 (suspended for 90 days), forfeiture of $95.00 for one month, and
7 days of restriction.

5.  On 21 November 1976, the applicant's commander notified the applicant that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 (Unfitness/Unsuitability), paragraph 13-5b(2), based on unsuitability.  The reasons for the commander's proposed action were that the applicant displayed a consistent unsuitability for military service based on having received NJP on two occasions, posing as a U.S. Army Criminal Investigation Command (USACIDC, also known as CID) agent, admitting to black marketing, and attempting suicide.  The commander noted that counseling related to the applicant's NJP had no discernable effect and that psychiatrists stated the applicant was likely to attempt suicide again.  The commander saw no alternative except separation of the applicant.  The applicant was advised of his rights and the separation procedures involved.

6.  On 29 November 1976, the applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

	a.  He acknowledged that military legal counsel for consultation was available to assist him.

	b.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him.

	c.  He waived consideration of his case by a board of officers and personal appearance before a board of officers.

   d.  He waived representation by counsel and elected not to submit statements in his own behalf.

	e.  The applicant and his legal counsel placed their signatures on the document.

7.  On 29 November 1976, the company commander recommended the applicant be discharged from the U.S. Army under the provisions of Army Regulation
635-200, chapter 13, for unsuitability.

8.  The battalion commander recommended approval of the separation action.

9.  On 10 December 1976, the colonel serving as the special court-martial convening authority, and the authorized separation authority in the applicant's case, waived the rehabilitative requirements and approved the applicant's separation.  The separation authority also directed the applicant's service be characterized as general, under honorable conditions.

10.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 22 December 1976 under the provisions of Army Regulation 635-200, paragraph 13-5b(30), and his service was characterized as general, under honorable conditions.  At the time he had completed 1 year, 6 months, and 8 days of net active service during the period of service under review.

11.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel 
found to be unfit or unsuitable for further military service.  In pertinent part, it 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 contends his general, under honorable conditions discharge should be upgraded to an honorable discharge because he was constantly harassed by his company commander and there was injustice involved in his separation processing.

2.  The applicant's contention that he was constantly harassed by his company commander and that there was injustice involved in his separation processing was carefully considered.  However, the applicant provides insufficient evidence in support of his claim.  In addition, the evidence of record fails to substantiate the applicant's claim.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  The evidence of record shows that during the applicant's period of military service he received NJP on two occasions; posed as a CID agent; admitted to black marketing; and he attempted suicide.  Thus, the evidence of record shows that the applicant's record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  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)                                         AR20090014030



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ABCMR Record of Proceedings (cont)                                         AR20090014030



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