IN THE CASE OF:	  

		BOARD DATE:	    3 May 2011

		DOCKET NUMBER:  AR20100026349 


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 an upgrade of his general discharge to an honorable discharge. 

2.  The applicant states, in effect, he was discharged for apathy, but he was a good Soldier for 2 years and 6 months.  He was the company commander's personal driver at Fort Campbell, KY.  He also states he wants his discharge upgraded so that he may be buried at a Veterans cemetery.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and DD Form 257A (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 on 21 September 1972 and he held military occupational specialty 76A (Supply Clerk).  He was awarded the National Defense Service Medal.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) as follows:

* On 22 May 1973, for being absent without leave (AWOL) from 15 to 16 May 1973
* On 13 November 1974, for disobeying a lawful order
* On 20 November 1974, for being absent from his appointed place of duty

4.  Between October 1974 and February 1975, he was frequently counseled by several members of his chain of command for various infractions including leaving his place of duty, a poor attitude, lack of military bearing, sleeping on duty, showing signs of alcoholic indulgence, unsatisfactory job performance, failing to maintain his room and personal appearance to standards, and missing appointments.

5.  On or about 13 January 1975, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 13-5, for unsuitability because of apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  

6.  On an unknown date, he acknowledged notification of the proposed discharge action.  He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army; the effect on future enlistment in the Army; the possible effects of a general discharge; and of the procedures and rights that were available to him.  He further acknowledged that he understood if he were issued a general discharge he could expect to encounter substantial prejudice in civilian life.  He elected consideration of his case by a board of officers.

7.  On 21 February 1975, a board of officers convened to determine the applicant's suitability for retention.  The Summary of Proceedings reveals the applicant and his legal counsel appeared before the board.

8.  The board found him unsuitable for further retention in the Army because of apathy, defective attitudes, and inability to expend effort constructively, and recommended that he be separated with a General Discharge Certificate.

9.  On 5 March 1975, the separation authority accepted the findings and recommendations of the board of officers and approved his discharge under the provisions of Army Regulation 635-200, paragraph 13-5, for unsuitability because of apathy, defective attitudes, and inability to expend effort constructively and directed the issuance of a General Discharge Certificate.  On 27 March 1975, the applicant was discharged accordingly.

10.  The DD Form 214 he was issued confirms he completed 2 years, 6 months, and 7 days of creditable active service with 8 days of lost time. 

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contains the policy and outlines the procedures for separating individuals for unsuitability.  It provided, in pertinent part, that individuals would be discharged by reason of unsuitability, when they display one or more of the following traits; inadequate and undisciplined behavior, a lack of appropriate interest, failure to perform prescribed duties due to defective attitude rather than physical limitation, and failure to report to duty without medical or military authorization.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 

13.  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 available evidence of shows he demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the numerous times he received adverse counseling and the three times he received NJP under the UCMJ, for being AWOL, disobeying lawful orders, and being absent from his place of duty.  Accordingly, his immediate commander initiated separation action against him under the provisions of chapter 13, Army Regulation 635-200, for unsuitability.


2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

3.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based on its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for burial and other benefits should be addressed to the VA.

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)                                         AR20100026349



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ABCMR Record of Proceedings (cont)                                         AR20100026349



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