IN THE CASE OF:	  

		BOARD DATE:	  27 March 2012

		DOCKET NUMBER:  AR20110016248 


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 an honorable discharge.

2.  The applicant states he has been a faithful and dedicated member of society during the past 30 years.  He has bettered himself through education, training, and job performance.  He has continuously gone through the Department of Veterans Affairs (VA) health system where he received the necessary counseling and treatment for his conditions.  This has given him a renewed sense of purpose allowing him not to compromise his integrity, tenacity, and fortitude.

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty)
* 17 pages of documents pertaining to his qualification, training, experience, and awards as a commercial truck driver, dating from 1996

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.  On 1 February 1977, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty (MOS) 11D (Armor Reconnaissance Specialist).  He was subsequently assigned for duty as a scout driver at Fort Polk, LA.

3.  The applicant accepted four nonjudicial punishments (NJPs) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 28 December 1977, 6 June 1978, 14 July 1978, and 21 August 1978 for failing to go at the time prescribed to his appointed place of duty.

4.  On 7 August 1978, the commander notified the applicant of his intent to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsuitability due to apathy.

	a.  The commander stated that the applicant had been counseled on six occasions concerning his numerous violations of the UCMJ and displayed extreme apathy toward his military duties.

	b.  The commander further recommended waiver of any further counseling or rehabilitation because further duty would create serious disciplinary problems.  The applicant was determined to obtain release from the military service.

5.  On 28 August 1978, the applicant consulted with counsel and he was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 13 for unsuitability.  The applicant waived consideration of his case and personal appearance before a board of officers.  However, he elected to submit a statement in his own behalf.

6.  In his statement he stated he had consulted with the chaplain and company commander but things had not changed.  He had been very much troubled for more than a year because of marital problems.  His wife had gone out on him and left him.  Further, he was accused of being prejudice, which he contended he was not; he treated everyone the same.  He felt that he had not been fulfilling his MOS duties and he was required to do a lot of details he thought was unfair.


6.  On 11 September 1978, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 13 and directed the applicant be issued a General Discharge Certificate.

7.  Accordingly, on 20 September 1977, he was separated with a general discharge.  He completed 1 year, 7 months, and 20 days of total active service.

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

9.  The applicant's service medical records are not available for review.

10.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  Chapter 13 of the regulation in effect at the time provided for separation due to inaptitude, personality disorder, apathy, and homosexuality (tendencies, desires, or interest but without overt homosexual acts).  The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions.

	b.  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.

11.  The documents provided by the applicant pertaining to his profession as a commercial truck driver show that he completed a professional truck and commercial driver training program in 1996 and has maintained his qualifications since that date.  He has completed a variety of training courses related to his profession and is a lifetime member of the Owner-Operator Independent Drivers Association.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to honorable on the basis of his post-service accomplishments.

2.  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.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110016248



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ABCMR Record of Proceedings (cont)                                         AR20110016248



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