IN THE CASE OF:	

		BOARD DATE:	  2 January 2014

		DOCKET NUMBER:  AR20130006882 


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 the current characterization of his discharge does not adequately describe his service from 1979 to 1982.  He was diagnosed with chronic major depression in August 2010 and he believes the incidents that occurred in service are directly related to the ongoing depression issues he has experienced throughout his life. 

3.  The applicant provides no additional evidence.

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 (RA) on 8 March 1977 and he held military occupational specialties 63C (Track Vehicle Mechanic) and 64C (Motor Transport Operator).

3.  His records also show he served in Germany from September 1977 to December 1979.  While in Germany, he executed a 3-year reenlistment in the RA, and upon completion of his overseas tour he was reassigned to Fort Hood, TX. 

4.  He was awarded or authorized the Army Service Ribbon, Army Good Conduct Medal, Overseas Service Ribbon, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 

5.  On 17 June 1981, he departed his unit on ordinary leave but he failed to return from leave.  As such, his unit reported him in an absent without leave (AWOL) status on 27 June 1981.  He returned to military control on 3 July 1981.  He was subsequently confined by military authorities from 4 to 8 July 1981. 

6.  On 14 July 1981, he was convicted by a summary court-martial of one specification of being AWOL from 27 June to 3 July 1981.  The court sentenced him to a forfeiture of pay and a suspended reduction.  The convening authority approved the sentence on 16 July 1981. 

7.  On 1 September 1981, the suspended punishment was vacated and ordered executed. 

8.  On 3 February 1982, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for leaving his appointed place of duty without authority and failing to go at the time prescribed to his appointed place of duty. 

9.  On 14 May 1982, he again accepted NJP under the provisions of Article 15 for defrauding the Fort Hood Exchange by writing checks with insufficient funds. 

10.  His records also show he was frequently counseled by members of his chain of command for various infractions including failure to report, substandard performance, being late to formation, writing bad checks, and other issues. 

11.  On 27 May 1982, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his habitual misconduct.  The immediate commander stated the applicant's performance had been a disgrace and that he had been totally unable to adjust to the military's code of ethics and discipline.  He would only perform to standards when under constant supervision, and his personal life was a disaster.  He was unable to manage personal finances and continued to have domestic problems.  He was a low quality individual with no benefit to the Army.  He was furnished with a copy of this bar, but he elected not to submit a statement on his own behalf.  The bar was ultimately approved by the appropriate authority.

12.  On 21 June 1982, 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 - Enlisted Personnel) by reason of unsuitability (apathy, defective attitude, or inability to expend efforts constructively).  

13.  On 21 June 1982, the applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He elected not to submit a statement on his own behalf.  He acknowledged that he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.

14.  The immediate commander subsequently initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsuitability.  He cited the applicant's serious disciplinary problems.  The intermediate commander recommended approval. 

15.  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 and directed issuance of a general discharge under honorable conditions.  Accordingly, the applicant was discharged on 29 July 1982.

16.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he received shows he was discharged for unsuitability (apathy, defective attitude, or inability to expend effort constructively) under the provisions of chapter 13 of Army Regulation 635-200 with a general character of service.  This form shows he completed 2 years, 9 months, and 25 days of active service and he had 2 years, 6 months, and 20 days of prior active service.  He also had lost time from 27 June 1982 to 2 July 1982. 


17.  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.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time 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.  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.

2.  The available evidence shows his duty performance was tarnished by a court-martial conviction, two instances of 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.  Nothing in his records shows he suffered from depression during his military service or that his misconduct/poor performance resulted from depression or any other medical condition. 

4.  Based on his extensive record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he 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 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)                                         AR20130006882





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ABCMR Record of Proceedings (cont)                                         AR20130006882



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