BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100025754 


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 honorable

2.  The applicant states:

* his discharge should be upgraded because he never received any letters of disciplinary action, an Article 15, or court-martial
* although he was young when he enlisted he served his country to the best of his ability
* he does not believe a general discharge was warranted
* since his discharge he has worked for the City of Los Angeles as a narcotic testing officer for over 28 years 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Four character reference letters

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 was born on 11 August 1960.  He enlisted in the Regular Army on 13 November 1979 for a period of 3 years.  He completed his training and was awarded military occupational specialty 76V (materiel storage and handling specialist).

3.  Records show he went absent without leave (AWOL) on 25 February 1982 and returned to military control on 11 May 1982.

4.  On 24 May 1982, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph13-4c(2), for unsuitability due to apathy (lack of appropriate interest), defective attitudes, or inability to expend effort constructively.

5.  On 26 May 1982, he consulted with counsel, waived his rights, and elected not to submit a statement on his own behalf.

6.  In May 1982, he underwent a mental status evaluation and was found mentally responsible.

7.  On 2 July 1982, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

8.  He was separated with a general discharge on 28 July 1982 under the provisions of Army Regulation 635-200, paragraph 13-4c(2), for unsuitability – apathy, defective attitude or inability to expend effort constructively.  He had a total of 2 years, 6 months, and 1 day of creditable active service with 75 days of lost time.

9.  He provided four character reference letters from co-workers and friends.  They attest the applicant is kind, sincere, professional, responsible, and an upstanding citizen.  In addition, he is a mentor to the youth and has led a crime free life.

10.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. 

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Paragraph 13-4c provided for discharge due to unsuitability because of apathy, defective attitude or inability to expend effort constructively.  The regulation stated that when separation for unsuitability was warranted, an honorable or general discharge was issued as warranted by his military record.

12.  Army Regulation 635-200, paragraph 3-7, 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.  He contends he was young when he enlisted.  However, age is not a sufficiently mitigating factor.  He was 19 years old when he enlisted and he successfully completed training.  In addition, he served over 2 years prior to going AWOL.  

2.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

3.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  He contends his discharge should be upgraded because he never received any letters of disciplinary action, an Article 15, or court-martial.  However, evidence shows he had 75-day AWOL period.  

5.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

6.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

7.  His record of service included 75 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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)                                         AR20100025754





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ABCMR Record of Proceedings (cont)                                         AR20100025754



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