IN THE CASE OF:	  

		BOARD DATE:  3 January 2013

		DOCKET NUMBER:  AR20120011228 


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 removal of item 28 (Narrative Reason for Separation) from her DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states:

* Although she had difficulty adjusting to military service, she performed her job/duties to the best of her abilities
* She enlisted in the Army with 1 year of college and she was promised the pay grade of E-3 but she never received it
* She was sexually assaulted and she left in an absent without leave (AWOL) status; however, she returned and tried to adapt
* She has since worked successfully in the private sector for the past 
30 years

3.  The applicant provides the following documents:

* DD Form 214
* College transcripts
* Marriage certificate

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 records show she enlisted in the U.S. Army Reserve under the Delayed Entry Program on 2 February 1979.  Her DD Form 4 (Enlistment/
Reenlistment Document - Armed Forces of the United States) shows she enlisted for assignment to the 82nd Airborne Division upon completion of training in her military occupational specialty (MOS).

3.  She enlisted in the Regular Army for a period of 3 years in the rank/grade of private/E-1 on 5 February 1979.  She was assigned to Fort Gordon, GA, on 8 February 1979 for completion of one station unit training in MOS 72E (Telecommunication Center Specialist).  

4.  While in training at Fort Gordon, she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 2 April 1979, for stealing a package of cookies from another Soldier.

5.  She was placed on assignment to Fort Bragg, NC, with temporary duty enroute to attend the Basic Airborne Course at Fort Benning, GA.  However, item 17 (Civilian Education and Military Schools) of her DA Form 2-1 (Personnel Qualification Record) shows she did not complete training.  

6.  She was further reassigned to Company B, 501st Signal Battalion, Fort Campbell, KY on or about 19 August 1979.  

7.  On 22 August 1979, she departed her unit in an AWOL status and on the same date, she was dropped from Army rolls as a deserter.  She appears to have been attached to the Cleveland Military Entrance Processing Station on or about 17 September 1979.  

8.  On 27 September 1979, she was again reported in an AWOL status and on 8 January 1980, she was reported present for duty at the U.S. Army Personnel Control Facility, Fort Bragg, NC.  

9.  On 22 January 1980, Headquarters, XVIII Airborne Corps, Fort Bragg, NC published official orders withdrawing MOS 72E and awarding her MOS 71L (Administrative Specialist).  

10.  Also on 22 January 1980, she accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 22 August to 17 September 1979 and from 27 September 1979 to 8 January 1980.  

11.  On 22 February 1980, an official of the 573rd Personnel Service Company, Fort Bragg, NC, initiated a DA Form 4187 (Personnel Action) adjusting her enlistment grade from E-1 to E-3 effective 5 February 1979 (date of enlistment) in accordance with Army Regulation 601-280 (Regular Army and Army Reserve Enlistment Program).  

12.  On 24 February 1981, she accepted NJP under the provisions of Article 15 of the UCMJ for being disrespectful towards a commissioned officer.  

13.  On 13 April 1980, she was reassigned to Headquarters and Headquarters Company, 1st Corps Support Command, Fort Bragg, NC as a rehabilitative transfer. 

14.  On 21 May 1981, her immediate commander notified her of his intent to initiate separation action against her in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations) by reason of unsuitability.  The immediate commander stated that since her assignment to the unit she had shown a lack of appropriate interest in military service and had failed to comprehend the true nature of military behavior in that she did not constructively expend her efforts on military bearing.  

15.  On 5 June 1981, she acknowledged receipt of the commander's intent to separate her for apathy (lack of appropriate interest) and subsequently consulted with legal counsel.  She was advised of the basis for the contemplated separation action for unsuitability, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her.  She waived consideration of her case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement on her own behalf.  

16.  She further acknowledged that she understood she might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her and that she might be ineligible for many or all of the benefits as a veteran under both Federal and State laws.
17.  Her immediate commander initiated separation action against her in accordance with Army Regulation 635-200 by reason of unsuitability (apathy).  Her intermediate commander recommended approval.

18.  On 15 June 1981, a board of officers convened to determine if she should be retained or separated for unsuitability.  She was accordingly advised.  

19.  On 16 June 1981, she accepted NJP under the provisions of Article 15 of the UCMJ for being disrespectful towards a noncommissioned officer.  

20.  A subsequent board of officers found her unsuitable for service and recommended discharge from the Army by reason of apathy, defective attitude, and inability to expend efforts constructively.  

21.  On 2 July 1981, subsequent to a legal review for sufficiency by a military attorney, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, and directed that she be furnished an under honorable conditions (general) discharge.  Accordingly, the applicant was discharged on 22 July 1981. 

22.  The DD Form 214 she received shows she completed 2 years, 1 month, and 22 days creditable military service and she had lost time from 22 August to 16 September 1979 and from 17 September 1979 to 7 January 1980.  Additionally: 

* Item 26 (Separation Code) shows the entry "JMJ"
* Item 28 shows the entry "Unsuitability - Apathy, defective attitude or inability to expend effort constructively"

23.  There is no evidence in her records that shows she was involved in a sexual assault experience.

24.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contains the policy and outlines the procedures for separating individuals for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  

25.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "JMJ" is the correct code to be assigned to Soldiers separating under chapter 13 of Army Regulation 635-200 by reason of unsuitability (apathy).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her narrative reason for separation should be removed. 

2.  The evidence of record shows the applicant displayed a pattern of apathy and lack of interest in that she repeatedly failed to accomplish her assigned mission, a pattern of AWOL, multiple instances of NJP, and failure to respond to counseling/rehabilitative transfer.  

3.  Accordingly, her chain of command initiated separation action against her.  Her administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized her rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record confirms the narrative reason for separation was assigned based on the fact that she was discharged under the provisions of chapter 13 of Army Regulation 635-200 due to unsuitability - apathy.  Absent her defective attitude and/or inability to expend effort constructively, there was no fundamental reason to process her for separation.  The underlying reason for her discharge was her apathy.  

5.  The only valid narrative reason for separation permitted under this paragraph is "Unsuitability - Apathy, defective attitude or inability to expend effort constructively."  The appropriate narrative reason for separation is listed on her DD Form 214 and there is no reason to change it.  

6.  With respect to her arguments:

	a.  Her enlistment contract shows she enlisted in pay grade E-1.  Nevertheless, her records were corrected to adjust her grade to E-3 based on her education.  
	b.  There is no evidence in her records in the form of a criminal investigation report, military police report, or other documentary evidence that shows she was involved in a sexual assault.  

7.  The applicant appears to have been discharged under the appropriate separation authority and she was assigned the appropriate narrative reason for separation.  In view of the foregoing, there is insufficient evidence to grant her 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)                                         AR20120011228



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ABCMR Record of Proceedings (cont)                                         AR20120011228



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