BOARD DATE:  17 January 2013

		DOCKET NUMBER:  AR20120012145 


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.

2.  The applicant states he suffered many physical and psychological abuses including assaults, name calling, and blanket parties from Army personnel at Fort Bragg, North Carolina.  He was sent to the correctional custody facility for more punishment.  He was naive, ignorant, and psychologically affected by all the punishments he received in the military.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* statement describing the abuses, assaults, etc., that happened to him from March 1979 to June 1982 at Fort Bragg, North Carolina
* memorandum of congratulations for graduation from the Offset Printing Course, Fort Belvoir, Virginia
* four pages from his discharge packet
* two Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claim), dated 27 May 2012
* two VA Forms 21-4142 (Authorization and Consent to Release Information to the VA)
* one page showing copies of business cards for various VA health care personnel and offices


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 23 March 1979.  He held military occupational specialty 83G (Photolithographer).

3.  His DA Form 2-1 (Personnel Qualification Record) shows in:

	a.  item 9 (Awards, Decorations, and Campaigns), the Army Service Ribbon and Expert Marksmanship Qualification Badge with Rifle Bar;

	b.  item 18 (Appointment and Reductions), the highest grade he held was specialist four/E-4; and

	c.  item 35 (Record of Assignments) he was assigned to Fort Bragg, North Carolina, as an offset press operator.

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on 8 June 1982 for failing to go to the company formation.

5.  On 26 July 1982, his immediate commander initiated elimination action against him for unsuitability.  The specific reason cited was apathy in daily soldiering requirements and a total lack of respect for service members in positions of authority.  The commander stated the applicant's duty performance had been unsatisfactory.  Despite numerous counselings, the applicant had continuously displayed contemptuous behavior toward his superiors and the U.S. Army in general.

6.  The applicant consulted with counsel, waived his rights, and acknowledged that he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge.  He elected to submit a statement in his own behalf in which he stated he regretted what had happened but he hoped to be given another opportunity to be a better Soldier.

7.  A DA Form 2496 (Disposition Form), dated 21 June 1982, subject:  Psychiatric Evaluation, shows he was seen as a command referral.  The diagnosis shows "No Psychiatric Disorder."  The evaluating psychiatrist stated, "This service member is cleared for whatever administrative action is deemed appropriate by Command, including the provisions of AR [Army Regulation] 
635-200, chapter 13-4c [sic]."

8.  The intermediate commander recommended approval of the applicant's discharge for unsuitability based on his overall apathetic attitude and poor performance record.

9.  On 2 August 1982, the separation authority waived further rehabilitative requirements, approved the discharge, and directed issuance of a General Discharge Certificate.

10.  The applicant was discharged on 6 August 1982 under the provisions of Army Regulation 635-200, chapter 13.  He completed 3 years, 4 months, and 14 days of net active service during this period.

11.  On 4 June 1985, the Army Discharge Review Board denied his request for a change to the character and/or reason for his discharge.

12.  The applicant provides:

	a.  a self-authored statement describing the abuses, assaults, etc., that happened to him from March 1979 to June 1982 at Fort Bragg, North Carolina, at the hands of other Soldiers;

	b.  a memorandum of congratulations for graduation from the Offset Printing Course, Fort Belvoir, Virginia;

	c.  three pages from his discharge packet containing marginal notes criticizing the actions and a copy of his NJP; and

	d.  various VA forms relating to his claim and treatment.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  Chapter 13, in effect at the time, provided for separation for various reasons including apathy.  This chapter 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 chapter 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 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.  There is no available evidence to substantiate the applicant's assertions that he was subjected to physical, psychological, or any other type of abuse during his active military service.

2.  His administrative separation was accomplished in compliance with all requirements of law and applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the narrative reason were therefore appropriate and equitable.  He submitted a statement in his own behalf in which he could have raised his current contentions, but he did not do so.

3.  He has not shown error, injustice, or inequity for the relief he requests.  Therefore, the applicant is not entitled to an honorable discharge.

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)                                         AR20090019477



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ABCMR Record of Proceedings (cont)                                         AR20120012145



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