IN THE CASE OF:	   

		BOARD DATE:	  13 August 2013

		DOCKET NUMBER:  AR20130001322 


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 a fully honorable discharge.

2.  The applicant states:

   a.  Upon his tour of duty with Battery B, 1st Battalion, 8th Field Artillery, his command demonstrated prejudice against him which contributed to him not being able to meet and exceed the command's expectations as a Soldier.

   b.  He routinely felt harassed by the command and was made to believe he was never good enough.  He further believes, in effect, the command wanted to make a fool of him by separating him with less than a fully honorable discharge when in fact he was meeting expectations in all areas of his duties and training.
   
   c.  The command gave up on him and separated him unwillingly.  He did not understand the character of service that was reported on his discharge at the time of separation, but it has affected him significantly when seeking employment.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).




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 he enlisted in the Regular Army on 13 November 1979, and he held military occupational specialty 13B (Cannon Crewman).  

3.  The applicant's record contains a DA Form 2-1 (Personnel Qualification Record) that shows he was absent without leave (AWOL) for the period 7 April through 20 April 1980.

4.  On 13 August 1980, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go to his appointed place of duty and willfully disobeying a lawful order.

5.  On 9 September 1980, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his demonstrated apathy towards his military obligation as indicated by his lack of appropriate interest, defective attitude, and inability to expend effort constructively.  The applicant was provided a copy of this bar and he elected not to submit a statement on his own behalf.  The approval authority subsequently approved the bar.

6.  His record contains a record of rehabilitation and counseling by members of his chain of command for various infractions, including:

* missing formations
* disobeying a lawful order
* riding sick call
* refusing to work
* failing to follow directives
 

7.  On 9 September 1980, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations) by reason of unsuitability (apathy, lack of appropriate interest, defective attitude, and inability to expend effort constructively). 

8.  The applicant acknowledged receipt of the commander's intent to separate him and indicated he did not desire to consult with legal counsel.  He waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and elected not to submit a statement in his own behalf.  

9.  On 9 September 1980, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsuitability (apathy, lack of appropriate interest, a defective attitude, and an inability to expend effort constructively).  The immediate commander further requested a waiver of a rehabilitative transfer.  He stated due to the applicant's demonstrated apathy towards his military obligations as indicated by his lack of appropriate interest, defective attitudes, and inability to expand effort constructively, it would be inappropriate to transfer him to another unit within the division.

10.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of chapter 13, Army Regulation 635-200 by reason of unsuitability (apathy, a lack of appropriate interest, a defective attitude, and inability to expend effort constructively) and directed the issuance of a general discharge under honorable conditions.  Accordingly, the applicant was discharged on 22 October 1980.

11.  The DD Form 214 he received shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with a general character of service.  This form further shows he completed 10 months and 26 days of creditable military service with 14 days of lost time.

12.  There is no evidence in the applicant's record and he did not provide any evidence to support his contention that he was the recipient of prejudice at any time throughout his service.  

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.


14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation set forth the basic authority, established the policy, and prescribed the procedures for separating members for unsuitability (apathy, defective attitude and inability to expend effort constructively).  Members separating under this provision of the regulation could receive either an honorable or a general discharge.

15.  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 evidence of record shows the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards.  Accordingly, his immediate commander initiated separation action against him for unsuitability.

2.  The available evidence shows his duty performance was tarnished by being AWOL, receiving NJP, a bar to reenlistment, and a history of negative counseling.  The evidence further shows his separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights.  His general discharge is commensurate with his overall record of military service.

3.  There is no evidence in the applicant's record and he did not provide any evidence to support his contention that he was the recipient of prejudice at any time throughout his service.  

4.  Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  In view of the foregoing, there is insufficient evidence to grant 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)                                         AR20130001322



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ABCMR Record of Proceedings (cont)                                         AR20130001322



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