IN THE CASE OF:	  

		BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100022625 


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, correction of his records to show he was discharged for a medical disability.

2.  The applicant states he was to be court-martialed due to a total nervous breakdown.  He was told by the doctor he would be under a military disability for a nervous breakdown for the rest of his life.  He was discharged with a general discharge due to medical conditions.  He was denied due process.

3.  The applicant provides his General Discharge Certificate.

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 records show he enlisted in the Regular Army (RA) on 21 July 1972 and held military occupational specialty 11B (Light Weapons Infantryman).  He served in Korea from 14 January 1973 to 9 January 1974.  He was honorably discharged on 22 July 1974 for the purpose of immediate reenlistment and he executed a 6-year reenlistment in the RA on 23 July 1974.

3.  He was awarded the National Defense Service Medal, Armed Forces Expeditionary Medal (Korea), and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The highest rank/grade he attained during his military service was specialist four/E-4.

4.  His records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* on 16 May 1975, for operating a vehicle while drunk and in a reckless manner
* on 16 September 1976, for failing to go at the time prescribed to his appointed place of duty
* on 9 November 1976, for willfully and wrongfully damaging the privately-owned vehicle of a superior noncommissioned officer
* on 23 February 1977, for disobeying a lawful order from a superior commissioned officer

5.  His service records contain an extensive history of negative counseling by members of his chain of command for:

* multiple instances of missing formation
* not shaving in the morning
* displaying a negative attitude and lack of motivation
* being argumentative and disrespectful
* constantly arguing with supervisors about the mission
* rehabilitative transfer
* misusing a jeep, speeding, and oversleeping
* poor general appearance

6.  On 12 November 1976, the applicant's immediate commander notified the applicant of his intent to initiate a rehabilitative transfer from one Fort Hood unit to another due to his inaptitude, apathy, defective attitude, and inability to expend effort constructively.

7.  On or about 19 November 1976, he consulted with legal counsel and he was advised of the basis for the contemplated transfer and the rights available to him. 
He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement on his own behalf.

8.  On 15 March 1977, the applicant's immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to unsuitability – apathy, defective attitude, or inability to expend effort constructively.

9.  On 17 March 1977, he acknowledged he had been notified of the pending separation action against him and that he had been advised by counsel of the basis for the contemplated action to separate him for unsuitability.  He waived consideration of his case by a board of officers, personal appearance before a board of officers, and again elected not to submit a statement on his own behalf.

10.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He also acknowledged he understood that in the event of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and might encounter substantial prejudice in civilian life.

11.  On 17 March 1977, his immediate commander initiated elimination action against him under the provisions of chapter 13 of Army Regulation 635-200 due to unsuitability.  The immediate commander stated the applicant had a history of difficulty when dealing with superiors which resulted in a rehabilitative transfer.  However, since arriving to this unit, he continued his pattern of poor duty performance, disrespectful attitude, and lack of constructive effort.  All attempts, including counseling, NJP, and a job change failed to improve his attitude or performance.  All reasonable efforts had proved futile.  Continued service would have resulted in continued disruptive influence in this unit or others.

12.  On 22 March 1977, his intermediate commander recommended approval of the applicant's discharge and requested a waiver of any further requirements for counseling or rehabilitative transfer because prior attempts had failed.

13.  On 5 April 1977, the separation authority approved the applicant's discharge from the Army under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsuitability with the issuance of a General Discharge Certificate.

14.  On 7 April 1977, he acknowledged he received a separate document explaining the narrative reason for his separation from the Army.

15.  He was discharged on 21 April 1977.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with a General Discharge Certificate.  He completed a total of 4 years, 9 months, and 1 day of creditable active military service.

16.  His available medical records, including his separation physical and chronological record of medical care, do not show he was diagnosed with a nervous breakdown or any other nervous condition.

17.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of or change to his discharge within that board's 15-year statute of limitations.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 at the time contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion; (c) drug addiction; (d) an established pattern of shirking; and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

19.  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, in effect, his records should be corrected to show he was discharged for a medical disability.

2.  The applicant's records reveal a history of misconduct which includes four instances of NJP, an extensive history of negative counseling, and a rehabilitative transfer.  He was provided with multiple counseling and/or opportunities for rehabilitation by his chain of command, but he failed to respond constructively.  Accordingly, his chain of command appears to have initiated separation action against him.

3.  The evidence of record shows his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with applicable law and regulations at the time and the character of his service is commensurate with his overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.

4.  He contends he was denied due process.  However, it is unclear how he was denied due process.  The available evidence shows he consulted with legal counsel after the initiation of a rehabilitative transfer and elimination action.  In each case he was advised of the basis for the contemplated action and the rights available to him and in each case he waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement on his own behalf.

5.  He contends a doctor told him he would be under a military disability for a nervous breakdown for the rest of his life.  The available evidence, however, shows he acknowledged that he received a separate document explaining the narrative reason for his separation from the Army on 7 April 1977.

6.  He contends he had a total nervous breakdown.  His contention of suffering a total nervous breakdown is without merit as there is no evidence of record and he did not submit any evidence of any nervous disorder diagnosis during his military service.

7.  In view of the foregoing evidence, he is not entitled to the requested relief.

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 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)                                         AR20100022625



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ABCMR Record of Proceedings (cont)                                         AR20100022625



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