BOARD DATE:	  31 January 2012

		DOCKET NUMBER:  AR20110014765 


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 that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states:

* he was offered an honorable discharge to get out early due to massive cutbacks in the military
* when he received a general discharge under honorable conditions he was sick and he has been sick for over 20 years

3.  The applicant provides no additional documents.

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 official military personnel record shows he enlisted in the Regular Army on 24 July 1975.

3.  His record reveals a disciplinary history that includes numerous Fort Hood (FH) Forms 4-11 (Record of Formal Counseling) documenting adverse counseling sessions for committing the following offenses:

* failing to pay just debts 
* reporting late for formation
* failing to shave
* disrespecting a noncommissioned officer

4.  His record contains a DA Form 4126-R (Bar-to-Reenlistment Certificate), dated 14 November 1978, which shows the applicant's commander recommended that he be barred from reenlistment due to the following reasons:

* nonjudical punishment under the Uniform Code for Military Justice (UCMJ) for assault with a deadly weapon on 20 January 1978
* special court-martial conviction on 17 October 1978
   
5.  The bar to reenlistment was approved.

6.  On 7 November 1978, he received notification that he was being considered for separation under the provisions of Army Regulation 635-200 Personnel Separations), chapter 13 for reasons of unsuitability-apathy, defective attitudes, or inability to expend effort constructively.  The applicant's commander indicated his recommendation was based on the applicant's off-duty performance being weak, his nonresponse towards counseling, his inability to adapt to his new unit or superiors appointed over him, and the numerous counseling.

7.  He was advised of the rights available to him and the effects of a general discharge.  He was also informed that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He was advised of his right to counsel, his right to an administrative hearing by a board of officers, his right to submit a statement in his own behalf, and his right to be represented by counsel at a hearing.  The commander also explained the applicant's waiver privileges and the procedures for withdrawal of a waiver.  The applicant waived his rights.  He further acknowledged that he understood he would be ineligible to apply for enlistment in the United States Army for a period of 2 years after discharge.

8.  On 7 November 1978, his commander recommended that he be separated under the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability because of apathy.

9.  On the same date the separation authority waived further rehabilitative efforts and directed that the applicant be separated for apathy with issuance of a general discharge.

10.  On 20 December 1978, he was discharged accordingly.  His DD Form 214 shows:

* his service was characterized as under honorable conditions (general)
* he was discharged under the provisions of Army Regulation 635-200, chapter 13-4c

11.  Army Regulation 635-200, chapter 13 applied to separation for unfitness and unsuitability.  At that time, paragraph 13-4 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.

12.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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 applicant contends his general discharge should be upgraded to an honorable discharge.

2.  His discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would have jeopardized his rights.  The evidence provides a sufficient basis for an under honorable conditions discharge for unsuitability-apathy.
3.  His record reveals a disciplinary history that includes numerous adverse counseling statements, a summary court-martial, a Bar to Reenlistment Certificate, and his acceptance of NJP under Article 15, UCMJ.

4.  In view of the forgoing, he is not entitled to 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)                                         AR20110014765



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1