IN THE CASE OF:	  

		BOARD DATE:	  27 March 2012

		DOCKET NUMBER:  AR20110018679 


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 an upgrade of his general discharge to honorable under medical conditions.

2.  The applicant states:

	a.  He feels he had an excellent service record and he made mistakes due to circumstances in his tours, but he should not have to continue to pay for these mistakes.

	b.  During his first enlistment he served honorably.  He was recognized many times by his supervisors and commanders as the "guy to go to" and developed a reputation of being the guy whom you could always rely upon.  He was twice awarded the Army Good Conduct Medal and Army of Occupation Medal.  He was also awarded the Army Service Ribbon and Overseas Service Ribbon.

	c.  After completing communications training he was in charge of a squad while stationed at Fort Bragg, NC, during his second enlistment.  Once again his reputation of being a reliable person was reinforced.

	d.  The compounding stress started to get to him around mid-tour of his third enlistment.  He had stopped sleeping because the stress was hard to bear.  He had become increasingly aggressive, short tempered, and withdrawn from life and duties.  He did not know he was suffering from depression at the time.  He was not aware of the medical help the Army provided.  His first sergeant suggested he terminate his contract with the Army and he agreed because of his mental state.

	e.  His problems seemed to increase following his military service.  He has not been able to hold a job for very long periods of time.  He started distancing himself from his wife and eventually walked away from his wife and three children.  He turned to heroin to help him cope with life, but that was no solution. 
A social worker noticed something wasn't right with him and sent him to a Department of Veterans Affairs doctor who diagnosed his depression.  He has been on medication since 2004 and will require medication for the rest of his life.

	f.  He feels his discharge should be upgraded because he served honorably and his sickness was due to a lack of treatment for depression.  He feels his sickness and the discharge have affected his life enough and do not need to affect whatever future he has left.

3.  He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 3 November 1982.

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 military record shows he enlisted in the Regular Army on 13 January 1976 for 3 years.  He completed training and was awarded military occupational specialty 72G (Automatic Data Telecommunications Center Operator).  He served in Germany from 12 August 1977 through 5 January 1979.

3.  He was honorably discharged on 18 December 1978 for the purpose of immediate reenlistment and issued a DD Form 214.  He reenlisted on 19 December 1978 for 3 years.

4.  He was honorably discharged again on 30 March 1980 for the purpose of immediate reenlistment.  He reenlisted on 31 March 1980 for 3 years.  He served in Germany from 7 May 1980 through 29 October 1982.

5.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) as follows:

* on 22 May 1979 for being absent from his place of duty on 17 May 1979
* on 14 June 1979 for being disrespectful in language toward his superior noncommissioned officer on 7 June 1979
* on 7 January 1980 for failing to go at the time prescribed to his appointed place of duty on 12 December 1979

6.  On 7 October 1980, he extended his 31 March 1980 reenlistment by 2 months.

7.  He again accepted NJP under Article 15, UCMJ, as follows:

* on 2 April 1981 for mishandling classified material
* on 4 February 1982 for operating an unsafe vehicle, inattentive driving, and wrongfully and unlawfully leaving the scene of an accident on or about 12 December 1981

8.  On 20 May 1982, the applicant's company commander initiated a Bar to Reenlistment Certificate against the applicant based on his record of NJP, nonpayment of just debts, and letters of indebtedness.  The company commander stated the applicant should not be allowed to reenlist as he had been a continual source of trouble to the company.

9.  The bar to reenlistment was approved on 7 June 1982.

10.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 28 July 1982, shows the applicant's behavior was found to be normal.  His level of alertness and orientation were found to be fully alert and fully oriented.  His mood or affect was unremarkable and his thinking process was clear.  His thought was found to be normal and his memory was good.  The examining physician, a medical doctor, found no significant mental illness and that the applicant was mentally responsible, able to distinguish right from wrong, and able to adhere to the rights.  The applicant had the mental capacity to understand and participate in board proceedings and met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

11.  On 1 September 1982, the applicant's company commander notified the applicant of his intent to initiate action to effect his discharge for unsuitability because of apathy pursuant to the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 13-4c.

12.  On 9 September 1982 after consulting with counsel, the applicant elected to have his case heard by a board of officers.  He waived a personal appearance before a board of officers, elected not to submit a statement in his own behalf, and waived representation by counsel.

13.  A board of officers convened on 18 October 1982 and recommended the applicant's discharge because of unsuitability with the issuance of a general discharge.

14.  He was discharged in pay grade E-3 on 3 November 1982 under the provisions of Army Regulation 635-200, paragraph 13-4c(2)), for unsuitability – apathy – defective attitude or inability to expend effort constructively.  He was credited with completing 6 years, 9 months, and 21 days of active service and 2 years, 22 months, and 6 days of prior active service and no lost time.

15.  There is no evidence to show he submitted a request for an upgrade of his discharge to the Army Discharge Review Board within its 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.

	a.  Paragraph 13-4c, in effect at the time, provided for the separation of individuals for unsuitability for apathy.  A discharge under other than honorable conditions was normally considered appropriate.  However, a general or honorable discharge may be awarded, if appropriate.

	b.  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.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides for the expeditious discharge of enlisted personnel who, in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, are not qualified for retention on active duty by reason of a physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the Regular Army on 13 January 1976 and served through multiple reenlistments.  He accepted nonjudicial punishment under Article 15 on five separate occasions after reenlisting in 1978.  On 7 June 1982, a bar to reenlistment against him was approved.  In September 1982, the applicant's company commander initiated action to eliminate him for unsuitability due to apathy.  The applicant did not mention any medical conditions he was experiencing.

2.  The applicant requested consideration of his case by a board of officers.  The board recommended the applicant's discharge because of unsuitability with a general discharge.  It appears he was given a general discharge based on his overall record as the characterization of service for this type of discharge was normally under other than honorable conditions.  His repeated unsatisfactory performance starting in 1979 diminished the quality of his service below that meriting a fully honorable discharge in 1982.

3.  There is an absence of evidence to support his contentions for entitlement to a medical discharge.  There is no evidence he was found to be unfit by reason of a physical disability during his period of active duty.  A mental status examination found no significant mental illness and determined the applicant was mentally responsible, able to distinguish right from wrong, and able to adhere to the right.

4.  He provided no evidence or a convincing argument to show his discharge should be upgraded to an honorable discharge or changed to a medical discharge. There is an absence of evidence to support that any medical conditions prevented his satisfactory completion of service.  He was properly discharged in accordance with pertinent regulations with due process.

5.  It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  In the absence of evidence to the contrary, government regularity in the discharge process is presumed.


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)                                         AR20110018679



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ABCMR Record of Proceedings (cont)                                         AR20110018679



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