IN THE CASE OF:	  

		BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100018953 


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 discharge to an honorable discharge.

2.  The applicant states that he was unfairly ganged up on, charged falsely, beaten up, and not given a fair shake.  He further states that in the interest of fairly treating an American veteran and the interest of integrity his discharge should be upgraded.

3.  The applicant provides a copy of a DA Form 2627 (Record of Proceedings under Article 15, UCMJ).

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 Montgomery, AL on 16 November 1973 for a period of 3 years and assignment to Korea.  He was transferred to Fort Polk, LA to undergo his basic training and his advanced individual training (AIT) as a light weapons infantryman.

3.  On 8 March 1974 nonjudicial punishment (NJP) was imposed against him under Article 15, Uniform Code of Military Justice (UCMJ) for being derelict in the performance of his duty as a fire guard.

4.  On 6 April 1974 he was transferred to Korea for assignment to an infantry company in the 2d Infantry Division.

5.  On 4 October 1974 NJP was imposed against him for being off base without a pass and for failing to make morning work formation.

6.  On 21 November 1974 NJP was imposed against him for being absent without leave (AWOL) from his unit from 1 November to 9 November 1974 and for possession of two straight razors, which were considered to be deadly weapons, on 7 November 1974.

7.  On 5 December 1974 the applicant’s commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, chapter 13, for unsuitability due to apathy.  He indicated that the applicant’s undependability, lack of motivation, apathetic attitude towards the Army, his unwillingness to follow instructions, and his failure to respond to repeated counseling sessions and adapt to military discipline were the basis for his recommendation.

8.  The battalion chaplain provided a statement indicating that he had interviewed the applicant and that the applicant did not want the discharge and indicated that he thought he could be a good Soldier if he were stationed stateside; however, he would accept the discharge if there was no other choice.

9.  On 30 December 1974 NJP was imposed against him for possession of marijuana and for being absent from barracks fire guard duty.

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

11.  On 8 January 1975 the appropriate authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.

12.  On 20 January 1975 he was discharged accordingly at Oakland Army Base, CA under the provisions of Army Regulation 635-200, chapter 13, for unsuitability due to apathy.  He had served 1 year, 2 months, and 5 days of total active service.  The applicant also acknowledged that he understood the procedures for requesting a review of his discharge by the Army Discharge Review Board (ADRB); however, there is no evidence in the available records to show that he applied to the ADRB within that board’s 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Chapter 13 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. 

14.  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’s 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 his repeated misconduct and the fact that he continued to demonstrate an 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 Board determined that 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)                                         AR20100018953



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018953



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1