IN THE CASE OF:	  

		BOARD DATE:	  3 January 2013

		DOCKET NUMBER:  AR20120011053 


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 discharge from general under honorable conditions to fully honorable.

2.  He states he was waiting for a hardship discharge because his mother was sick at the time and was tricked into taking a less than honorable discharge as a way to get home to her sooner.

3.  He provides a letter from his mother.

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 enlisted in the Regular Army on 10 October 1979 and he held military occupational specialty 31N (Tactical Circuit Controller).  The highest rank/pay grade he attained while serving on active duty was private/E-2.  However, at the time of release from active duty he held the rank/pay grade of private/E-1.

3.  His record reveals he was the recipient of numerous adverse counseling sessions for the following offenses:

* disobeying a lawful order from a noncommissioned officer (NCO) on several occasions
* being disrespectful towards an NCO on several occasions
* failing to follow instructions

4.  His record contains two DA Forms 3975 (Military Police Report) which show he was arrested and charged with the following offenses on 16 June and 22 August 1980, respectively:

* Drunk and Disorderly Conduct
* Assault on a Military Policeman
* Disorderly Conduct

5.  His record reveals his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code for Military Justice (UCMJ) on 27 June 1980 for violating Article 128 of the UCMJ by striking a military policeman on the side of the face and in the ribcage with his fist.

6.  On 11 July 1980, the applicant's unit commander imposed a promotion bar against him because his duty performance had been of such as not to warrant promotion consideration at the time.

7.  On 25 August 1980, his unit commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for unsuitability.  The unit commander also informed the applicant that he could receive a general discharge and be issued a General Discharge Certificate.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, and to waive these rights in writing.  He acknowledged receipt of the unit commander's notification on the same date.

8.  On 28 August 1980, having been advised by consulting counsel, he acknowledged the fact that he had been counseled regarding the basis for the contemplated separation, its effects, and the rights available to him.  He was also informed that if he was issued a general, under honorable conditions discharge, he could expect to encounter substantial prejudice in civilian life.  He indicated he would submit a statement in his own behalf, but it is not present in his record. 

9.  On 17 September 1980, the unit commander recommended the applicant's separation from the Army under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-4 for unsuitability.  The unit commander cited as the basis for this action the applicant’s apathy and defective attitude.  The commander also noted that all attempts of counseling and rehabilitation had failed and requested that any further attempts at rehabilitation be waived.  The intermediate commander concurred and recommended approval.

10.  On 10 October 1980, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, for unsuitability, and directed the issuance of a General (Under Honorable Conditions) Discharge Certificate.

11.  On 20 October 1980, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:

* Block 24 (Character of Service) the entry "Under Honorable Conditions"
* Block 25 (Separation Authority) he was discharged under the provisions of paragraph 13-4c (2) of Army Regulation 635-200
* Block 28 (Narrative Reason for Separation) the entry "Unsuitability-apathy, defective attitude or inability to expend effort constructively"

12.  His record is void of any evidence that either his mother was ill or that he had a hardship discharge request pending at the time of his separation.

13.  On 25 September 1981, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his general discharge to a fully honorable discharge.  In his application, he requested to appear in person before the ADRB and indicated he would present his contentions and supporting documents to the board when he appeared before them.  As a result, the applicant was scheduled to appear before an ADRB traveling Panel in San Francisco, CA.  Evidence shows the applicant failed to be present for his scheduled appearance before the ADRB.  As a result, his case was heard based upon a review of the evidence contained in his record.

14.  On 13 August 1981, The Adjutant General informed the applicant that after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  Accordingly, his request for a change in the type and nature of his discharge was denied.
15.  The applicant provides an undated letter rendered by his mother who attests that at the time the applicant was in the Army, she was suffering from anxiety and other medical and financial difficulties.  She was hospitalized at the time for what a doctor thought was a heart attack.  Her ex-husband, the father of her children, had abandoned them.  She had no parents, family, or anyone else to help her.  The applicant is her eldest child and she had three younger children at home.  Her doctor suggested that she contact the American Red Cross and inform them that she needed to have the applicant home with her to help out.  An American Red Cross representative helped her contact her Senator and the Senator advised her to contact her son's commanding officer.  She attests the commanding officer stated that she needed to get a letter from her doctor stating her medical condition and financial situation.  When she contacted the commander once again, he acknowledged receipt of the letter from her doctor and assured her that the applicant would be released from the U.S. Army with an honorable discharge due to a hardship at home.  When her son told her he had received a general discharge and explained what it meant, she was angry.  She is still angry and beyond disappointed that they were lied to and treated in such a way.

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

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his discharge was carefully considered and determined to lack merit.

2.  His record is void of any evidence that either his mother was ill or that he had a hardship discharge request pending at the time of his separation.
3.  The record shows he had multiple disciplinary infractions.  In spite of his indiscipline, his chain of command was willing to allow him to remain on active duty and continue to serve.  Evidence clearly shows he was not responsive to the rehabilitative efforts of his command.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his characterization of service from general under honorable conditions to fully honorable.

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)                                         AR20120011053





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ABCMR Record of Proceedings (cont)                                         AR20120011053



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