IN THE CASE OF:
BOARD DATE: 22 December 2011
DOCKET NUMBER: AR20110011190
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 correction of the narrative reason for separation of his DD Form 214 (Report of Separation from Active Duty) to show he was discharged for medical disability.
2. The applicant states his status has changed.
3. The applicant provides no additional evidence.
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 15 November 1973. He completed training and was awarded military occupational specialty 05C (Radio Teletype Operator).
3. His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four occasions as follows:
* on 27 March 1974, for absenting himself from his unit from on or about 19 March to on or about 24 March 1974
* on 10 March 1975, for failing to be at his appointed place of duty on or about 6 February 1975
* on 6 August 1975, for physically assaulting/striking a fellow Soldier in the face with his fist on or about 24 June 1975
* on 15 December 1975, for failing to be at his appointed place of duty on or about 20 November 1975
4. His record shows he was formally counseled by members of his chain of command on at least eight separate occasions between December 1974, his date of arrival to his unit of assignment, and the date his separation was initiated for a myriad of performance and conduct-related matters which included, but was not limited to, unsatisfactory duty performance, lack of motivation, poor attitude, disrespect, failure to follow instructions, failure to obey orders, indebtedness, delinquency in paying his financial obligations, and an overall inability or refusal to comply with rules and regulations.
5. On 25 November 1975, the applicant's immediate commander notified him of his intent to initiate elimination action against him under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 13, by reason of unfitness. The immediate commander cited the applicant's frequent incidents of a discreditable nature with civil and military authorities as his reason for recommending the applicant's separation.
6. On 12 December 1975, the applicant acknowledged receipt of the separation memorandum, the basis for the contemplated action and its effects, the rights available to him, and the effect of any action taken by him to waive his rights. He requested consideration of his case by and personal appearance before a board of officers; however, he declined to submit statements in his own behalf. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him. He was afforded the opportunity to consult with legal counsel and he elected to do so.
7. On 16 December 1975, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness.
8. On 23 March 1976, a board of officers convened to consider his case. Later on that same day, the board adjourned. In its findings, the board recommended his discharge from the service for unfitness and receipt of an Undesirable Discharge Certificate.
9. On 2 April 1976, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness and directed issuance of an Undesirable Discharge Certificate.
10. On 5 April 1976, he was discharged accordingly. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, with an under other than honorable conditions character of service. His DD Form 214 further shows he completed 2 years, 4 months, and 7 days of net active service during this period. The highest rank/grade he attained during his military service was private first class/E-3. However, at the time of his discharge he held the rank/grade of private/E-1.
11. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 provides for separation due to unsatisfactory performance when, in the commander's judgment, the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order, and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.
12. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards. Accordingly, his immediate commander initiated separation action against him.
2. There is no evidence to show he was ever physically unable to perform his duties.
3. The available evidence shows his duty performance was tarnished by four instances of NJP and a history of negative counseling. The evidence further shows his separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights.
4. His contention that he suffered from a disability cannot be substantiated; therefore, he is not entitled to 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) AR20090011583
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20110011190
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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