IN THE CASE OF:	  

		BOARD DATE:  8 April 2014

		DOCKET NUMBER:  AR20130013850 


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, in effect, upgrade of his discharge characterized as general under honorable conditions to honorable.   

2.  He states he was discharged because of apathy and not being able to work.  He maintains that his profile did not allow him to perform the type of work required of him. 

3.  He provides a Veterans Administration (VA) Form 21-2545 (Report of Medical Examination for Disability) and a VA Form 21-2507a (Request for Physical Examination).
 
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 record shows he enlisted in the Regular Army on 4 December 1978.  He was trained in and awarded 11B (Infantryman) as his military occupational specialty.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on two separate occasions:  3 February 1981 for failing to go at the time prescribed to his appointed place of duty on 23 January 1981 and 11 March 1981 for wrongfully having marijuana in his possession on 5 March 1981.

4.  His record shows that between the period 17 November 1980 and 22 June 1981, he received six negative counseling statements for:

* 17 November 1980, no haircut
* 14 April 1981, non-performance, poor attitude
* 15 April 1981, absent from extra duty formation
* 22 May 1981, absent from accountability formation
* 19 June 1981, absent from first formation
* 22 June 1981, shirking duty

5.  The applicant's record is void of a profile or any medical documentation that indicated he was medically unfit to perform his duties as an infantryman.

6.  On 9 July 1981, the company commander notified the applicant of his intent to recommend that he be discharged under the provisions of chapter 13 or 
chapter 14, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  On 13 July 1981, the unit commander recommended that the applicant be separated from the service due to unsuitability under the provisions of chapter 13, Army Regulation 635-200.  Specifically, the commander listed the applicant's apathy, defective attitude, and inability to expend effort constructively as justification for the discharge action.  

8.  On 16 July 1981, he consulted with military counsel.  He stated that he was advised of the basis for the contemplated action to separate him for unsuitability its effects, the rights available to him, and the effect of any action taken by him in waving his rights.  He waived his rights to consult and be represented by counsel.  He elected not to submit statements on his behalf.

9.  He acknowledged he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued.  He further understood that if he received a discharge certificate/character of service which was less than honorable, he may be ineligible for manly or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.  He also understood he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

10.  On 28 July 1981, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the applicant receive a general characterization of service.  Accordingly, he was discharged on 10 August 1981 with his service characterized as general, under honorable conditions.  He completed a total of 3 years, 8 months, and 10 days of total active service.

11.  The applicant provided two VA forms that show he was seen at the VA clinic on 16 September 1984.  His complaints were listed as loss of hearing in the right ear, pain in the right shoulder, and numbness in the right arm.  The applicant reported that he fractured his right clavicle in a football game about three years ago.

12.  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.

13.  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 argues, in effect, that his discharge should be upgraded because his indiscipline was due to being on a profile that prohibited his ability to work.  There is no evidence and the applicant did not provide any that indicates he had a medical problem and that medical problem caused his indiscipline.  The fact that he provides a document from VA which he reported that he injured his right clavicle in a football game is not sufficient as a basis to upgrade his discharge. 
2.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20130013850





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ABCMR Record of Proceedings (cont)                                         AR20130013850



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