IN THE CASE OF:	  

		BOARD DATE:	  30 January 2014

		DOCKET NUMBER:  AR20130009447 


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 he needs to have his discharge upgraded due to his disabilities. 

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 on 20 November 1979, and he held military occupational specialty 31M (Multichannel Communications Equipment Operator).  
3.  The evidence shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 20 August 1980, for failing to obey a lawful order
* 12 September 1980, for failing to go to his appointed place of duty on four separate occasions and for disobeying a lawful order
* 3 November 1980, for absenting himself from his unit for the period         23 through 25 September 1980
* 17 April 1981, for absenting himself from his unit for the period 3 through   4 April and 7 through 10 April 1981, and for failing to obey a lawful order

4.  On 17 April 1981, 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 a lack of motivation, self-discipline, apathy and an inability to adapt to military life.

5.  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.  

6.  His immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsuitability.  His commander recommended discharge because of the applicant's complete disregard for the military and regulations, poor attitude and motivation, and a record of substandard performance.  The evidence shows the applicant received counseling on 10 separate occasions regarding his conduct.

7.  On 4 May 1981, the applicant's administrative discharge for apathy, defective attitude and inability to expend effort constructively was reviewed by a member of the Office of the Staff Judge Advocate and found to be legally sufficient.  

8.  On 6 May 1981, 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 the issuance of a General Discharge Certificate.  Accordingly, the applicant was discharged on 11 May 1981.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 1 year, 2 months, and 29 days of creditable military service with  lost time for the periods 23 and 24 September 1980; 29 September through       15 October 1980; 3 April 1981; and 7 through 9 April 1981.

10.  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.

11.  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.

12.  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 multiple instances of NJP, 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.  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)                                         AR20130009447



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ABCMR Record of Proceedings (cont)                                         AR20130009447



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