IN THE CASE OF:	  

		BOARD DATE:	  2 February 2012

		DOCKET NUMBER:  AR20110015359 


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 under honorable conditions discharge be upgraded to an honorable discharge and his narrative reason for discharge be changed.  

2.  He states:

* he has been a very productive member of society for the past 23 years
* he has worked on a Federal security contract for 5 years and as a        part-time police officer

3.  He provides a self-authored statement.  

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 completed prior service in the Army National Guard and he enlisted in the Regular Army on 10 February 1982 for a period of 3 years.

3.  On 14 June 1982, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty.  

4.  In July 1982, he received counseling on his poor performance, habitual malingering, and poor attitude.  

5.  On 10 August 1982, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsuitability - apathy, defective attitudes, or inability to expend efforts constructively.  The applicant was advised of his rights.  He consulted legal counsel and elected to submit a statement in his own behalf.  The statement is not available.  

6.  The unit commander recommended separation because the applicant had exhibited a defective attitude and an inability to expend his efforts effectively.  The unit commander also stated that despite the applicant’s individual attention by his noncommissioned officers, formal counseling efforts, and nonjudicial punishment, the applicant continued to show no improvement.  

7.  On 18 August 1982, the separation authority approved the separation action, waived rehabilitation requirements, and directed a general discharge.  

8.  He was discharged on 24 August 1982 under the provisions of Army Regulation 635-200, paragraph 13-4c(2) by reason of unsuitability – apathy, defective attitude, or inability to expend effort constructively.  He had completed 6 months and 15 days active military service during the period under review, 1 month and 12 days total prior active service, and 1 year, 7 months, and 27 days total prior inactive military service.

9.  His DD Form 214 shows a Separation Program Designator (SPD) code of "JMJ" (Unsuitability – Apathy, Defective Attitude Or Inability To Expend Effort Constructively).  

10.  The applicant provided a self-authored statement in support of his claim.  He stated:

	a.  it has been 28 years since he has been out of the military and for 23 years he has been a Security Officer.  Five of those years, he has worked on a Federal contract; 
	b.  he also worked as a part-time Police Officer in Berwyn, IL; 

	c.  he left the Army because his mother was a victim of spousal abuse at the time, not because of the negative characterization of service on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He loved the U.S. Army and wanted to make a career out of it, but his mother needed him more; and 

	d.  he wanted to become a Correction Officer in his county in Illinois, but he was afraid this negative reason of separation would do him more harm than good.

11.  His service record does not indicate he applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

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

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.

14.  Army Regulation 635-5-1 (SPD Codes) prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation, in effect at the time, showed that the SPD code “JMJ” as shown on the applicant’s DD Form 214 specified the narrative reason for separation as involuntary release or transfer for “Unsuitability – Apathy, Defective Attitude Or Inability To Expend Effort Constructively” and the authority for separation under this separation program designator was “AR 635-200, Paragraph 13-4c(2)."  



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he has been a very productive member of society for the past 23 years and worked on a Federal security contract for 5 years and as a part-time police officer are acknowledged.  However, good post service conduct alone is not a basis for upgrading a discharge.

2.  His statement regarding his personal family problem is also acknowledged.  However, his personal problem is not sufficiently mitigating to warrant an upgrade of his discharge.

3.  The ABCMR does not amend/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.   Additionally, in order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  

4.  The applicant's administrative discharge proceedings under the provisions of Army Regulation 635-200, paragraph 13-4c(2) were conducted in accordance with law and regulations applicable at that time.

5.  The applicant's service record shows he received one Article 15 and received adverse counseling during the period under review.  

6.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general under honorable conditions.

7.  There is no evidence of record which indicates the actions taken in this case were in error or unjust.  Therefore, 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)                                         AR20110015359





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ABCMR Record of Proceedings (cont)                                         AR20110015359



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