IN THE CASE OF:	  

		BOARD DATE:	  27 March 2014

		DOCKET NUMBER:  AR20130013004 


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 discharge be upgraded to honorable.

2.  The applicant states:

	a.  he believes his character of discharge is unfair.  He enlisted for 4 years and had the intent to serve the entire 4 years, but he was harassed by his unit commander on a daily basis.  Although his noncommissioned officers felt he performed satisfactorily, his unit commander still continued to degrade him and neglected to recognize his potential as a future Soldier.

	b.  he was not afforded an opportunity to undergo retraining or education to better the skills his commander was harassing him about.  He was not afforded proper healthcare or counseling for the family dispute he was involved in.  He feels it was his chain of command's responsibility to treat him with respect and care and not push him out when he needed a career the most.

	c.  his commander also lied to him in regard to his discharge.  His commander informed him he would not ban him from reenlistment but he did.  Because of his bar to reenlistment he did not have the opportunity to reenlist with another branch to further his career.    

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* General Discharge Certificate
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 Regular Army on 10 January 1977 for a period of 
4 years.  He completed his training and was awarded military occupational specialty 76W (petroleum supply specialist).  

3.  Between June 1977 and June 1978, nonjudicial punishment (NJP) was imposed against him on three occasions for:

* failure to go at the time prescribed to his appointed place of duty
* failure to obey a lawful order
* being absent without leave (AWOL) for 3 and 1/2 hours and possessing an unauthorized identification card

4.  He was counseled for:

* civil charge – arrested and jailed on disorderly conduct
* disobedience of direct orders of sergeants over him
* enlisted evaluation report – marginal narrative
* dishonored check

5.  On 22 June 1978, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations) for unsuitability.  The unit commander cited that the applicant could not adjust to Army life as the basis for this action.  He also stated:

* the applicant was enrolled in the Individual Effectiveness Course and failed to complete the program due to his lack of motivation
* he had been counseled on numerous occasions by every individual in the company chain of command and has failed to change his attitude and duty performance
* the first sergeant had gone completely out of his way to assist the applicant, but to no avail
* further assistance by the chain of command would be a complete waste of time and effort 

6.  On 10 August 1978, NJP was imposed against him for being AWOL from 
20 July 1978 to 8 August 1978.
 
7.  On 31 August 1978, after consulting with counsel and being advised of the basis for the contemplated separation action and its effect and the rights available to him, the applicant requested consideration of his case by a board of officers.

8.  On 10 October 1978, he waived consideration of his case by a board of officers and representation by counsel.  He acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He also elected not to submit a statement in his own behalf.

9.  On 10 October 1978, a bar to reenlistment was imposed against him. 

10.  On 13 October 1978, the separation authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.  

11.  On 25 October 1978, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsuitability.  He completed a total of 1 year, 8 months, and 21 days of total active service with 25 days of lost time.

12.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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 contends he was harassed by his unit commander on a daily basis.  However, there is no evidence of record and he provides no evidence which shows he was a victim of harassment.

2.  The evidence of record does not support his contention he was not afforded an opportunity to undergo retraining, education, or counseling.  Evidence shows he was enrolled in the Individual Effectiveness Course and failed to complete the program due to his lack of motivation, he had been counseled on numerous occasions by every individual in the company chain of command and failed to change his attitude and duty performance, and the first sergeant had gone completely out of his way to assist him.

3.  His record of service included four NJPs, a bar to reenlistment, and 25 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

5.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

6.  In view of the foregoing, 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)                                         AR20130013004





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ABCMR Record of Proceedings (cont)                                         AR20130013004



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