IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100012371 


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 under other than honorable conditions discharge [sic] be upgraded to an honorable discharge.

2.  The applicant states that at the time of his discharge he was a very confused young man.  He was being divorced by his wife and he was dealing with the issues of being sexually and physically abused by his foster father.  He states the Army did assist him in prosecuting his foster father for being a child molester.  He broke down and he states it was a bad decision to leave the Army.  He was injured a year after his discharge by a drunk driver and was hospitalized for 6 1/2 weeks.  Being left disabled, he spent the next 25 years in a drunken haze.  He decided to get help and is now in his second year of sobriety.  He is currently involved in Alcoholics Anonymous, plays the piano for his church, and donates 2 days a week feeding the poor and helping the elderly in his community.

3.  The applicant provides two personal references.

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 military personnel records show he enlisted in the Regular Army on 27 February 1981 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 95B (Military Police).

3.  The applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on three occasions for:

* going from his place of duty without authority
* failing to obey a lawful order issued by a military policewoman and failing to go at the time prescribed to his appointed place of duty
* operating a vehicle, a truck, while drunk

4.  On 6 May 1982, the applicant's commander notified him that he was initiating action to discharge him under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations) for unsuitability based on apathy, lack of appropriate interest, a defective attitude, and an inability to expend effort constructively.

5.  The commander's letter advised the applicant of his right to:

* have his case considered by a board of officers
* appear in person before a board of officers
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

6.  The applicant acknowledged that he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 13 of Army Regulation 635-200 for unsuitability.  The applicant waived:

* consideration by a board of officers
* a personal appearance
* representation by counsel and stated that he was not submitting statements in his own behalf
7.  The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

8.  The applicant's commander recommended him for discharge due to unsuitability.  The commander's specific reasons for the recommendation for discharge were the applicant's substandard conduct and duty performance.  The commander stated the applicant had been counseled numerous times by members of his chain of command regarding his substandard conduct and duty performance and he had shown little or no interest in self-improvement.

9.  The applicant's commander also stated the applicant's apathetic attitude toward self-improvement would not improve with a reclassification and reassignment.  He stated the applicant's entire chain of command, which included two different commanders, had attempted to develop him as a productive Soldier.  It was obvious he did not want to become a productive Soldier and a rehabilitative transfer would only delay his inevitable discharge for unsuitability.

10.  The appropriate authority waived further rehabilitative requirements, approved the recommendation for discharge under the provisions of chapter 13 of Army Regulation 635-200, and directed that the applicant be furnished a General Discharge Certificate.

11.  On 10 June 1982, the applicant was discharged under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsuitability for apathy, defective attitude, or inability to expend effort constructively.  He had completed 1 year, 3 months, and 14 days of active service.  Item 24 (Character of Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged "under honorable conditions."

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

13.  The applicant submitted a personal reference from the chaplain of the Kosciusko Community Hospital, Warsaw, IN.  The chaplain states he met the applicant as a patient and they have become good friends over the years.  The chaplain states he has seen the applicant come to an acceptance of his very challenging family background and become a mature, responsible, hard working, thoughtful man over the years.  He states the applicant has an honest, solid, growing relationship with his adult children, speaking volumes regarding his personal growth and where he's heading in his overall life.

14.  The applicant submitted a personal reference from Mr. S____, a member of the Warsaw Evangelical Presbyterian Church.  Mr. S____ states he has known the applicant since 2003 when he became an active member of the church, singing in the choir, playing piano for a variety of ministries, and regularly participating in a men's Bible study group.  He states the applicant is currently preparing meals for the marginalized folks in the area.

15.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Paragraph 13-4c provides 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 is warranted, an honorable or general discharge is issued as determined by the separation authority based upon the individual's entire record.

16.  Army Regulation 635-200 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 requests that his under other than honorable conditions discharge [sic] be upgraded to an honorable discharge.

2.  Army Regulation 635-200 states that Soldiers separated for unsuitability would receive a general or honorable discharge based on their entire service record.  As stated on his DD Form 214, the applicant received a discharge under honorable conditions.

3.  The applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  A review of the applicant's record of service shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or achievement.

5.  The applicant's post-service achievements and conduct were noted and the letters submitted by the applicant were reviewed.  However, good post-service conduct alone is not normally sufficient for upgrading a properly-issued discharge.

6.  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 failed to submit evidence that would satisfy that requirement.

7.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable.

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)                                         AR20100012371



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ABCMR Record of Proceedings (cont)                                         AR20100012371



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