IN THE CASE OF:	  

		BOARD DATE:	    1 March 2011

		DOCKET NUMBER:  AR20100020616 


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 his general discharge under honorable conditions be upgraded to an honorable discharge.  He also requests military occupational specialty (MOS) 95B be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 8 July 1982.

2.  The applicant states he was relieved of his duties in MOS 95B 6 months prior to his discharge.  He suffered a mental lapse and was relieved of his police duties, but his psychiatric evaluation of March 1982 determined he was normal.  He states his present schizophrenia may have been a factor.  He feels he was discriminated against resulting in his reduction in rank from E-4 to E-2.  He states he would like a review of records and correction of his official documents and a determination if his present schizophrenia was a factor.

3.  The applicant provides no additional evidence.

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.  ABCMR Docket Number AC83-09437, dated 23 May 1984, recommended the applicant's MOS 95B be added to his DD Form 214.  A DD Form 215 (Correction to DD Form 214) was issued on 27 June 1984 adding MOS 95B his DD Form 214.  A copy of the DD Form 215 will be provided to the applicant.  Therefore, this issue will not be discussed further in these proceedings.

3.  The applicant enlisted in the Regular Army on 18 July 1974 for a period 
of 3 years.  He completed basic combat and advanced individual training and was awarded MOS 95B.  He was promoted to specialist four/pay grade E-4 on 
3 June 1977.  He reenlisted on 14 July 1977 and on 16 May 1980.

4.  On 1 October 1980, he accepted nonjudicial punishment (NJP) for falling asleep on guard duty.

5.  On 3 September 1981, he received a letter of reprimand for failing to appear as a witness in the Federal Magistrate's Court, Aberdeen Proving Ground, MD.  His unprofessional conduct resulted in the dismissal of four court cases.

6.  On 8 January 1982, he received a letter of reprimand for using disrespectful language toward a staff sergeant/pay grade E-6.

7.  On 9 March 1982, he accepted NJP for assaulting a private by pointing his .45 caliber pistol at him.  As a result he was reduced to private/pay grade E-2.

8.  On 10 March 1982, he was administered a mental status evaluation and declared to be within normal limits.

9.  On 11 June 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.  The commander stated the applicant had not displayed an appropriate degree of interest, motivation, nor self discipline toward the Army.  Rehabilitation efforts regarding his apathetic attitude had met with negative results.  He stated the applicant had been counseled regularly regarding his duty performance.


10.  The commander advised the applicant of his right to:

* consult with consulting counsel
* 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

11.  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.  He did not submit any statement in his own behalf and he 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

12.  The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

13.  On 14 June 1982, his commander recommended him for discharge due to unsuitability.  The commander stated attempts to rehabilitate the applicant through numerous counseling sessions had failed.  He had definitely proved he could not stay out of trouble.  Failure by the applicant to make the necessary commitment to the Army coupled with the failure of the Army to discharge him at this time could only lead to more stringent elimination procedures at a future date.

14.  On 30 June 1982, 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.

15.  On 8 July 1982, he 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 2 years, 1 month, and 22 days of active service during this enlistment.  Item 24 (Character of Service) of his DD Form 214 shows he was discharged "under honorable conditions (general)."
16.  His service medical records were not available for review.

17.  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.

18.  Army Regulation 635-200 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.

19.  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 contends his general discharge under honorable conditions should be upgraded to an honorable discharge.  He contends he was discriminated against when he was reduced to private.  He contends his present schizophrenia may have been a factor in his misconduct.

2.  He has submitted no substantive evidence in support of his contention he was discriminated against when he was reduced in rank. 

3.  His service medical records were not available for review.  There is no mention in his military personnel records of him having been diagnosed with schizophrenia while he was on active duty.  There is no substantive evidence his claimed schizophrenia was a factor in any of his misconduct.  Therefore, this was not  considered as a mitigating factor in the determination of this case.

4.  Since his reenlistment on 16 May 1980, his performance deteriorated.  He accepted NJP on two occasions, one of which resulted in his reduction to private, and he received two letters of reprimand.  He clearly did not meet the standards of acceptable conduct and performance of duty expected of Army personnel.  
5.  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.

6.  In view of the foregoing, there is insufficient basis to warrant an upgrade of his general discharge to an honorable discharge.

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)                                         AR20100020616





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ABCMR Record of Proceedings (cont)                                         AR20100020616



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