BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110022914 


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 discharge be upgrade to an honorable discharge.

2.  The applicant states that he was 17 years of age at the time and suffering from mental trauma from years of mental and physical abuse.

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 (RA) on 1 April 1980 for 3 years.   On the date of his enlistment in the RA, he was 17 years and 7 months of age.  He completed training and was awarded military occupational specialty 63C (Track Vehicle Mechanic).

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

* 13 May 1980 - for absenting himself from his unit from 8 to 11 May 1980
* May 1980 - for absenting himself from his unit from 15 to 29 May 1980
* May 1980 - for absenting himself from his unit from 31 May to 30 June 1980

4.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 7 July 1980, 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 was level 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 right.  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.  The applicant was psychiatrically cleared.

5.  On 11 July 1980, the applicant's unit commander notified the applicant of his intent to recommend the applicant's elimination from the service in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 13-4c, for unsuitability due to lack of appropriate interest and ability to expend effort constructively.

6.  On 14 July 1980, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  He acknowledged he understood that he might be issued a general discharge and the effects of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

7.  On 5 August 1980, the applicant's unit commander recommended the applicant be eliminated from the service for unsuitability.  The unit commander stated that the applicant enlisted in the RA on 1 April 1980 for 3 years.  Since that date his records indicated that he had 3 periods of being absent without leave (AWOL), no period of confinement, was dropped from the rolls as a deserter once, no convictions by court-martial, and three Article 15s.

8.  On 7 August 1980, the appropriate separation authority approved the applicant’s separation action and directed the issuance of a general discharge.  
9.  He was discharged in pay grade E-1 on 21 August 1980, 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 3 month and 5 days of net active service.  He also was credited with time lost from 8 to 10 May 1980, 15 to 28 May 1980, and 31 May to 29 June 1980.

10.  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.

11.  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.

12.  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 RA on 1 April 1980 for 3 years.  In May 1980, he accepted NJP under Article 15 on three occasions for being AWOL.  On 11 July 1980, the applicant's unit commander initiated action to eliminate him for unsuitability due to apathy.  The applicant did not mention any medical conditions (mental or physical) he was experiencing.  A mental status examination found no mental illness and determined the applicant was mentally responsible, able to distinguish right from wrong and able to adhere to the right.
2.  His contention that his young age impacted his ability to serve successfully is without merit.  He was 17 years and 7 months of age when he enlisted in the RA. There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  

3.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and he also has not provided evidence sufficient to mitigate the character of his discharge.  His military records contain no evidence which would entitle him to an upgrade of his discharge.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge.

4.  Without sufficient evidence, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  Therefore, he was properly discharged in accordance with pertinent regulations with due process.

5.  In view of the foregoing, there is no basis for granting him the 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)                                         AR20110022914





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ABCMR Record of Proceedings (cont)                                         AR20110022914



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