IN THE CASE OF:
BOARD DATE: 3 May 2012
DOCKET NUMBER: AR20110021837
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, in effect, that his general, under honorable conditions discharge be upgraded to honorable. He also indicates he wants an award of the Purple Heart.
2. The applicant states he was hurt in 1979, and that he went to war in 1982. He contends that he participated in a secret mission named Operation Bright Star.
3. The applicant provides no additional documentation.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 4 June 1979, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty 13B (Cannon Crewmember). He was subsequently assigned for duty with A Battery,
1st Battalion, 18th Field Artillery Regiment located in the Federal Republic of Germany. He departed Europe on or about 28 August 1981
3. On 2 October 1981, the applicant was assigned for duty with the 1st Battalion, 35th Field Artillery Regiment located at Fort Stewart, Georgia.
a. On 31 December 1981, he accepted nonjudicial punishment (NJP) for AWOL on 21 December 1981.
b. On 16 February 1982, he received a letter of reprimand for substandard performance as a member of the howitzer section. He failed to be at his place of duty at the appointed time. The letter stated that he required constant supervision because of his lazy attitude.
c. On 18 May 1982, he accepted NJP for disobeying a lawful order and being disrespectful in language.
d. On 8 June 1982, he accepted NJP for failing to go to his appointed place of duty at the prescribed time
e. On 25 June 1982, he accepted NJP for being AWOL during 21-22 June 1982.
4. On 9 July 1982, the applicant's battalion commander approved a bar to reenlistment, citing his numerous NJPs, a letter of non-payment dated in March 1982, and eight general counseling statements dated in 1981 and 1982. The applicant acknowledged receipt of the action and indicated his desire to submit a statement. Such statement is not in the available records.
5. On 24 September 1982, the commander notified the applicant of his intention to separate him from the service for unsuitability due to apathy under the provisions of Army Regulation 635-200, Chapter 13. The commander was concerned that his behavior and attitude towards authority would get him into more trouble or cause someone in the chain of command to get into trouble; and therefore, stated the applicant needed to be separated as soon as possible.
a. The commander stated that the applicant had been counseled on seven occasions.
b. The commander further recommended waiver of any further counseling or rehabilitation.
6. On 24 September 1982, the applicant consulted with counsel, and elected to waive counsel. He also indicated his desire to submit a statement, but it was not found in the available records.
7. On 15 November 1982, the appropriate authority approved the recommendation and directed that he be issued DD Form 257A (General Discharge Certificate).
8. Accordingly, he was discharged under honorable conditions on
30 November 1982. He had completed 3 years, 5 months and 19 days of creditable active duty service.
9. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows:
a. he was discharged under the authority of Army Regulation 635-200, paragraph 13-4c due to unsuitability - apathy, defective attitude or inability to expend effort constructively, with an under honorable conditions (general) characterization of service; and
b. he received the Army Service Ribbon, Overseas Service Ribbon, and the Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars.
10. The applicant's service medical records are not available for review.
11. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.
12. Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.
13. Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.
a. Chapter 13 of this regulation, as in effect at the time, provided for separation due to inaptitude and apathy. The regulation required that separation action be taken, when in the commanders 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 unsatisfactory performance 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 members service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his general, under honorable conditions discharge should be upgraded to honorable because he was hurt in 1979, and went to war in 1982. He contends that he participated in a secret mission named Operation Bright Star and should have the Purple Heart.
2. There is no available evidence of record showing that the applicant ever served in combat, or that he was wounded during any such combat service. Therefore, that part of his application concerning an award of the Purple Heart should be denied.
3. The applicants administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
4. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.
5. 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.
6. In view of the foregoing, the applicant's request should be denied.
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.
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