IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100015679 


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, in effect, that his general discharge be upgraded to honorable. 

2.  The applicant states, in effect, that his general discharge was not warranted he was a basic trainee honoree, warrant officer candidate, and squad leader.  He states he was an officer’s driver and he worked in the motor pool.  He also states he was refused assistance under the Illinois State Veteran’s grant program because of the characterization of his service.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 October 1979 and a letter from the Illinois Student Assistance Commission, dated 12 December 2008.

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 29 August 1978 for 3 years.  He did not complete his initial entry-training. 

3.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate dates for being absent without leave (AWOL).  In addition, he was counseled on numerous occasions for his unsuitable conduct and lack of compliance with acceptable military standards of behavior. 

4.  On 8 August 1979, he was evaluated by a mental health professional.  The mental health professional found no evidence of an underlying previously-unrecognized medically-disqualifying emotional illness.  He further indicated that the applicant was and is mentally responsible, able to distinguish right from wrong, and he had the mental capacity to understand and participate in board proceedings.  He also certified the applicant met the retention standards of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).

5.  On 20 August 1979, the applicant’s company commander notified the applicant that he was initiating separation action against him for unsuitability.  The applicant was advised he could receive an honorable or a general discharge.  He was advised he could submit statements on his own behalf, he could be represented by counsel, and he had the opportunity to present his case before a board of officers.  He was also told he could waive his rights in writing and withdraw the waiver any time prior to the discharge authority’s decision.  

6.  He acknowledged receiving this separation notification on 20 August 1979.  Accordingly, he submitted a statement acknowledging counsel had advised him of the contemplated separation action under the provisions of Army Regulation 635-200 (Personnel Separations) for unsuitability.  He waived consideration of his case by a board of officers and waived a personal appearance before said board.  He indicated he would not submit statements on his own behalf and he waived representation by counsel.

7.  He also acknowledged he understood that as a result of the issuance of a discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.  


8.  On 20 August 1979, his company commander recommended separation under the provisions of Army Regulation 635-200 before the expiration of his term of service for unsuitability.  The commander's recommendation was based on the applicant's apathy and his failure to comply with numerous counseling directives.

9.  On 28 September 1979, the separation authority approved the recommendation for elimination and directed the applicant's discharge under the provisions of Army Regulation 635-200 for unsuitability with an under honorable conditions characterization of service.

10.  Accordingly, on 4 October 1979, he was discharged under the provisions of Army Regulation 635-200, paragraph 13-4c for unsuitability with an under honorable conditions characterization of service.  He had completed 1 year, 10 months, and 4 days of creditable active service with lost time from 4 May to 8 May 1979 and 13 July to 16 July 1979.

11.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of the regulation in effect at the time provided for separation due to inaptitude, personality disorder, apathy, and homosexuality (tendencies, desires, or interest but without overt homosexual acts).  The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions.

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 evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  He was counseled on numerous occasions and provided opportunities to improve his conduct and efficiency.  He did not conform; he continued to demonstrate substandard duty performance and a lack of respect for military authority, regulations and directives. 

2.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's administrative separation complied with applicable regulations with no indication of procedural errors that would have jeopardized his rights.  The type of discharge and reason for separation were appropriate considering all the facts of the case.

4.  After a review of the applicant's record of service, it is evident that the quality 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 view of the foregoing, the evidence is insufficient 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)                                         AR20100015679



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ABCMR Record of Proceedings (cont)                                         AR20100015679



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