IN THE CASE OF:	  

		BOARD DATE:  3 December 2013

		DOCKET NUMBER:  AR20130006338 


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.

2.  The applicant states, in effect, he wants his discharge corrected to reflect honorable.  He was told his discharge would automatically be upgraded to an honorable discharge within a year.

3.  The applicant provides a self-authored statement.

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.  After having had prior service, on 25 July 1980 the applicant enlisted in the Regular Army in military occupational specialty 36C (Wire System Installer Operator).
3.  The applicant received non-judicial punishment under the provision of Article 15, Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order on or about 9 January 1981.

4.  On 29 January 1981, the applicant received a formal counseling from his commander.  His record contains three additional documents dated (9, 12, and 14 January 1981) which show he was counseled for insubordination because he wanted out the military. 

5.  On 29 January 1981, the unit’s commander recommended that the applicant be discharged for unsuitability under the provisions of Army Regulation 635-200 (Personnel Separations).  The commander’s recommendation was based on apathy (the applicant’s lack of appropriate interest), defective attitudes, and inability to expend effort constructively.

6.  On 6 February 1981, the commander notified the applicant of the following reasons why he was initiating action under the provision of Army Regulation  635-200:

	a.  extreme apathy toward continued military service,

	b.  inaptitude for continued training, and

	c.  personality disorder

7.  On 6 February 1981, the applicant acknowledged receipt of the commander’s recommendation and proposed actions under the provisions of Army Regulation 635-200.  The applicant waived consideration of his case by a board of officers. 

8.  The applicant also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge is issued to him.

9.  On 5 March 1981, the applicant underwent a psychiatric evaluation.  The examining psychiatrist diagnosed the applicant as having no significant mental illness.

10.  On 9 March 1981, the appropriate authority approved the recommendation to administratively separate the applicant and directed that he receive a general discharge under the provisions of Army Regulation 635-200.  

11.  The applicant was discharged on 11 March 1981 with a General Discharge Certificate.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he completed a total of 7 months and 17 days of creditable active duty during the period under review.

12.  On 4 June 1992, the Army Discharge Review Board (ADRB) denied the applicant’s request for upgrade of his discharge.  

13.  The applicant argues in his statement that his commander informed him on
6 March 1981 that if he agreed to an under than honorable condition discharge, he would upgrade his discharge to honorable within a year and it did not occur.  The applicant wants his discharge corrected to reflect honorable.

14.  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.

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 applicant’s contention that his discharge should be upgraded was carefully considered and was determined to have insufficient evidence to support his request.

2.  The evidence of record confirms the applicant was separated under the provisions of Army Regulation 635-200, by reason of unsuitability.  His separation processing was accomplished in accordance with the applicable regulation at the time and his discharge accurately reflects his overall record of service.

3.  The applicant’s record reveals a disciplinary history that includes numerous adverse counseling statements and his acceptance of punishment under Article 15, UCMJ.
4.  The U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In view of the forgoing, he is not entitled 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 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)                                         AR20130006338





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ABCMR Record of Proceedings (cont)                                         AR20130006338



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