IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100022716 


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 be upgraded to an honorable discharge.

2.  The applicant states he would like it upgraded for employment purposes.

3.  The applicant did not provide any evidence in support of his application.

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 6 November 1978 for a 3-year period of service.



3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he completed basic combat training.  He was assigned to Headquarters, 2nd Battalion, Troop Training Brigade, at Fort Benjamin Harrison, IN, for advanced individual training (AIT) in military occupational specialty (MOS) 71C (Stenographer).  He did not complete the MOS 71C course and was reassigned to 2nd Battalion (Training), U.S. Army Academy of Health Sciences, at Fort Sam Houston, TX, for the purpose of attending AIT for MOS 91B (Medical Specialist).

4.  On 30 May 1979, the applicant accepted nonjudicial punishment for disobeying a lawful order of a commissioned officer and for being absent without leave (AWOL) from 7 to 22 May 1979.

5.  There is evidence in his personnel service record showing he was counseled by his chain of command on four separate occasions for being AWOL, neglecting his duties as a fireguard, failing to go to his appointed place of duty, and failing to repair.

6.  On 22 June 1979, the applicant was evaluated by a medical doctor and found fit for retention in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  During the mental status evaluation, he was found fully alert and oriented with his thinking process clear and thought content normal.  He was found mentally responsible and able to distinguish right from wrong and to adhere to the right.  Further, he had the mental capacity to understand and participate in separation board proceedings.

7.  On 25 June 1979, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unsuitability due to inaptitude.  The applicant was advised he could receive an honorable or a general discharge.  He was advised he could submit statements on his own behalf and that counsel could represent him.  He was also told he could waive his rights in writing and withdraw the waiver any time prior to the discharge authority's decision.

8.  On 29 June 1979, the applicant consulted with counsel and he waived representation by counsel.  He acknowledged he could expect to encounter substantial prejudice in civilian life with a discharge under honorable conditions.  He did elect to submit a statement to the separation authority.

9.  In his personal statement, dated 29 June 1979, he stated he told his recruiter he could not type 25 words per minute, which was a prerequisite for MOS 71C.  His recruiter told him he would learn to type at school.  On the first day of class, he failed the required typing test and was placed in a casual duty status performing post details.  When he was given a list of potential alternative MOS's that were available to him, he did not like the Army's suggestions.  He informed them he wanted to train to be a supply clerk or a cook.  However, he was assigned to Fort Sam Houston and told he would train to be a 91B, an MOS he did not want as he did not want to work in the medical field.  He stated he failed an assignment at his new MOS school, was removed from the class, and performed post details until he was separated.

10.  On 3 July 1979, the applicant's commander recommended separation under the provisions of Army Regulation 635-200, chapter 13, for inaptitude.  The commander said the applicant failed to complete MOS training as a stenographer and as a medical specialist.  The commander also stated the Department of the Army found him unqualified for further assignment and directed his discharge.  The commander further stated that during the period he was assigned to her unit he had gone AWOL and demonstrated a lack of motivation and interest in becoming a productive Soldier.

11.  On 16 July 1979, the separation authority approved the recommendation for elimination and directed that the applicant be furnished a general discharge.

12.  Accordingly, he was discharged on 20 July 1979 with a general discharge under honorable conditions under the provisions of Army Regulation 635-200, paragraph 13-4a, for unsuitability.  He completed only 8 months of total active service with 15 days of lost time.

13.  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.

14.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13, 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.  The service of Soldiers separated because of unsuitability under this provision of the regulation was characterized as honorable or under honorable conditions.

15.  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 never completed training for MOS 71C and he intentionally failed MOS 91B training.

2.  Based on his MOS course failures, his commander determined he was inept and initiated separation action against him.  During this period, he went AWOL and accepted nonjudicial punishment for this misconduct.  Further, the evidence of record shows he was counseled on multiple occasions for numerous disciplinary infractions.

3.  The type of discharge directed and the reasons were appropriate considering all the known facts of this case.  The applicant's 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.

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.

5.  In view of the foregoing, there is no basis for granting the applicant's request

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)                                         AR20100022716



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ABCMR Record of Proceedings (cont)                                         AR20100022716



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