IN THE CASE OF:	  

		BOARD DATE:  8 October 2013

		DOCKET NUMBER:  AR20130002997 


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, under honorable conditions discharge be upgraded to an honorable discharge.

2.  He states:

   a.  he feels his type of discharge is in error.
   
   b.  he was exposed to an incident beyond his control which caused him to adapt a protective survival lifestyle that was described by the service as "unsuitable-apathy, defective attitudes."

c.  he has gone through his life misunderstanding the actions he took back in 
the service until recently when he was diagnosed with Post-Traumatic Stress Disorder (PTSD)-Military Sexual Trauma (MST), which has been service-connected by the Department of the Veterans Affairs (VA) for this disability.

3.  He provides VA Rating Decision.

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 U.S. Army Reserve on 22 December 1977 and he enlisted in the Regular Army on 7 July 1978.  He was discharged on 29 April 1981 for immediate reenlistment.  He reenlisted 30 April 1981.  

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice on three occasions for the following offenses:

* failing to go at the time prescribed to his appointed place of duty on 3 November 1981 (two specifications)
* wrongfully appropriating a battery, of a value of about $50.00, military property of the United States
* violating a lawful general regulation by operating a motor vehicle without possessing a valid USAREUR [U.S. Army Europe] privately owned vehicle operator's license
* being absent without leave (AWOL) from 4 to 10 January 1982 and 21 June to 6 July 1982

4.  On 13 July 1982, the applicant's unit commander notified him of pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsuitability - apathy, defective attitudes, or inability to expend efforts constructively.  The applicant was advised of his rights.  The unit commander cited the reasons for recommendations as the applicant's record was not that of a rational Soldier, he has a record of five Article 15s and over 32 days of bad time, he has demonstrated a severe disregard for his responsibilities for the service, and he would be a liability in a combat environment.  The applicant consulted legal counsel and did not submit statements in his own behalf.  

5.  On 26 July 1982, the separation authority approved the separation action, waived rehabilitation requirements, and directed a general discharge.  

6.  He was discharged on 4 August 1982 under the provisions of Army Regulation 635-200, paragraph 13-4c(2) by reason of unsuitability – apathy, defective attitude, or inability to expend effort constructively.  He had completed 1 years, 3 months, and 5 days active military service during the period under review.  

7.  He provided a VA Rating Decision, dated 18 December 2012, which indicates he was granted service-connection for PTSD with a disability rating of 70 percent.

8.  His service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.

9.  Army Regulation 635-200, chapter 13 applied to separation for unfitness and unsuitability.  At that time, paragraph 13-4c provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

10.  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 administrative discharge proceedings under the provisions of Army Regulation 635-200, paragraph 13-4c(2) were conducted in accordance with law and regulations applicable at that time.

2.  The applicant's service record shows he received three Article 15s during the period under review.  

3.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general under honorable conditions.

4.  Unfortunately, there is no evidence that shows when the MST occurred, and he did not use this issue as a mitigating factor at the time.
5.  There is no evidence of record which indicates the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's 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)                                         AR20130002997





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ABCMR Record of Proceedings (cont)                                         AR20130002997



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