IN THE CASE OF:	  

		BOARD DATE:	    29 November 2011

		DOCKET NUMBER:  AR20110011794 


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 a fully honorable discharge and his narrative reason for separation be changed to reflect that he was discharged by reason of physical disability.

2.  The applicant states the Department of Veterans Affairs (VA) has determined that his service was honorable and has awarded him 80% in disability compensation.  Accordingly, he desires his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect that he was honorably discharged by reason of physical disability.

3.  The applicant provides a copy of his DD Form 214 and a summary of benefits from the VA.

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 26 November 1976 for a period of 3 years, training as a combat engineer, and assignment to Europe.  He completed his one-station unit training at Fort Leonard Wood, Missouri and was transferred to Germany on 6 April 1977.  He was advanced to the pay grade of E-4 on 5 July 1978. 

3.  On 30 May 1979, he reenlisted for a period of 4 years, assignment to Fort Devens, Massachusetts, and a selective reenlistment bonus.  

4.  On 2 May 1980 nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 24 April to 27 April 1980.

5.  On 1 October 1980 he was convicted by a special court-martial of being AWOL from 17 June to 23 June and 18 July to 21 July 1980.  He was sentenced to 25 days of confinement at hard labor and reduction to the pay grade of E-1.

6.  He was transferred to Germany on 17 March 1981 and on 14 October 1981 NJP was imposed against him for being absent from his place of duty and for being AWOL from 2 October to 3 October 1981.

7.  On 12 October 1982 NJP was imposed against him for being AWOL from 28 September to 30 September 1982.

8.  On 29 December 1982 NJP was imposed against him for drunken driving, sleeping on guard duty, and failure to go to his place of duty. 

9.  On 29 December 1982 the applicant’s commander also notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance due to his apathetic attitude towards the performance of his duties, his repeated unauthorized absences from his unit, his disciplinary record, and his continued abuse of drugs and alcohol.

10.  After consulting with defense counsel the applicant waived his rights and declined the opportunity to submit a statement in his own behalf.

11.  The appropriate authority approved the recommendation for discharge on 11 January 1983 and directed that he be furnished a General Discharge Certificate.

12.  Accordingly, he was discharged under honorable conditions on 17 January 1983 under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  He had served 3 years, 5 months and 24 days of active service during the period under review and had 50 days of lost time.

13.  A review of his records failed to show any indication that the applicant was deemed medically unfit for retention or separation.

14.  Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance if it was determined that the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A discharge under honorable conditions is normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7a, states 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.

16.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

2.   Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions and supporting documents have been noted and found to lack merit.  The applicant has failed to show through the evidence of record and the evidence submitted with his application that he was unable to perform the duties of his military occupational specialty due to physical disability at the time of his discharge 25+ years ago.

4.  Accordingly, there appears to be no basis on which to grant his 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 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)                                         AR20110011794





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ABCMR Record of Proceedings (cont)                                         AR20110011794



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