IN THE CASE OF:	  

		BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110005825


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 upgrade of his general discharge to a fully honorable discharge.

2.  The applicant states:

* he was young and he did not understand the meaning of patriotism
* he did know about our history as a country
* now he is older and very patriotic
* his general discharge goes against the grain of his beliefs

3.  The applicant provides no additional documentation.

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 4 March 1951.  He enlisted in the Regular Army on 24 January 1974 for a period of 4 years.  He was 22 years, 10 months, and
21 days old at the time of his enlistment.

3.  On 27 August 1976, the applicant's company commander initiated action to administratively discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for misconduct.  The stated reasons for this action were:

* three records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice [only one is contained in his record]
* 26 records of counseling for:

* being absent without leave (AWOL)
* failing to repair
* failing to perform his duties
* disobeying orders
* possessing a controlled substance

4.  On 30 August 1976, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13.  The applicant waived consideration of his case by a board of officers, a personal appearance before a board of officers, and representation by counsel.  He also elected not to submit a statement in his own behalf.

5.  On 30 August 1976, the administrative separation action was forwarded to the applicant's battalion commander for consideration.  The battalion commander recommended disapproval for misconduct; however, he recommended approval for unsuitability based on the applicant's apathy toward the military.

6.  The battalion commander forwarded the separation packet to the brigade commander for approval.  On 2 September 1976, the brigade commander approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, for unsuitability with a general discharge.

7.  On 10 September 1976, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1) for unsuitability with 


issuance of a General Discharge Certificate.  He completed 2 years, 7 months, and 5 days of creditable active service.  He was 25 years, 6 months, and
7 days old at the time of his separation.

8.  There is no evidence the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  In pertinent part, it provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

10.  Army Regulation 635-200 provides in paragraph 3-7a 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 requests a discharge upgrade because he was young and did not understand patriotism.

2.  The applicant was almost 23 years old when he enlisted, and over 25 years old when he was discharged.  He certainly was not young by Army enlistment standards.

3.  The applicant clearly demonstrated apathy and a lack of desire to be a productive Soldier.  Given his inability to abide by basic soldiering rules, he is fortunate his senior leadership did not support his company commander's desire to separate him based on unfitness (misconduct), which could have resulted in an undesirable discharge instead of the general discharge he received.


4.  The applicant's administrative separation was accomplished in compliance with applicable regulations, with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons for it were appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20110005825



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110005825



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1