IN THE CASE OF: 

		BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130019134 


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 that his general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states he was unaware of some disciplinary actions taken against him as a young Soldier.  He contends that had he been aware of them, he could have presented pertinent information affecting those actions.  He states that the characterization of his discharge is a deterrent to his pursuit of a career in law enforcement.

3.  The applicant provides a copy of a Letter of Commendation, dated 25 August 1978.

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.  On 27 April 1977, the applicant enlisted in the Regular Army.  He was assigned to Fort Knox, KY for enrollment into the Basic Combat Training (BCT) course.

	a.  On 9 June 1977, he accepted nonjudical punishment (NJP) for stealing several packets of Kool Aid valued at about $3.00.

	b.  On or about 3 August 1977, he completed BCT and departed for Fort Lee, VA, where he was enrolled in advanced individual training (AIT) as a supplyman.

3.  On 13 October 1977, he completed AIT and was advanced to private, pay grade E-2.  He departed for duty in the Federal Republic of Germany, where he was assigned to Company B, 2nd Battalion, 64th Armor Regiment.

	a.  On 24 May 1978, he accepted NJP for being disorderly in a public place and for failing to obey a lawful order by possessing a knife with a 3-inch blade.

	b.  On 27 September 1978, he was advanced to private first class, pay grade E-3.

	c.  On 9 November 1978, he accepted NJP for disobeying a lawful order to clean a space heater.  He was reduced to private, pay grade E-2.

	d.  On 20 November 1978, he was reassigned to Company C within the same battalion for the purpose of rehabilitation.

	e.  On 12 February 1979, he accepted NJP for disobeying a lawful order to shine his boots and for wrongfully appearing in company formation with unclean and unshined boots.

4.  The applicant underwent a psychiatric evaluation.  He presented himself in a neat military manner.  He appeared to be a well-developed, well-nourished, 
19-year old single Caucasian male.  He was oriented in all three spheres and was not in any acute stress.  His mood and effect were appropriate to his situation.  There was no evidence of any cognitive or effective disorder.  There was no homicidal, suicidal, or paranoid ideation.  His vegetative functions were not impaired.  His intellectual functions were intact.  The psychiatrist determined that he met medical retention standards and he did not have any psychiatric disease or defect that would have warranted disposition through medical channels.  He was mentally responsible, able to distinguish right from wrong and to adhere to the right.  He had the mental capacity to participate in board proceedings.

5.  On 27 February 1979, the commander notified the applicant of his intention to separate him from the service for unsuitability under the provisions of Army Regulation 635-200, chapter 13. The applicant acknowledged receipt of the commander's notice.

6.  On 27 February 1979, the applicant consulted with counsel, and elected to waive counsel.  He also indicated he did not desire to submit a statement.

7.  On 27 February 1979, the applicant's commander recommended he be eliminated from the service due to unsuitability.  The commander stated that he had been welcomed into the unit and provided a climate of challenge, counsel, discipline, and leadership in which to fulfill himself as a Soldier.  His performance of duty was unsatisfactory.

8.  On 13 March 1979, the battalion commander stated the applicant made no attempt to improve his attitude or performance.  He was apathetic and should be discharged.

9.  On 14 March 1979, the appropriate authority approved the recommendation and directed that he be issued DD Form 257A (General Discharge Certificate).

10.  Accordingly, he was discharged under honorable conditions on 
5 April 1979.  He had completed 1 year, 11 months, and 9 days of creditable active duty service.

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the authority of Army Regulation 635-200, paragraph 13-4c due to unsuitability - apathy, defective attitude or inability to expend effort constructively, with an under honorable conditions (general) characterization of service.

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

13.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  Chapter 13 of this regulation, as in effect at the time, provided for separation due to inaptitude and apathy.  The regulation required that separation action 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 unsatisfactory performance 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded to honorable because he was unaware of some disciplinary actions taken against him as a young Soldier.  He further contends that the characterization of his discharge is deterring his pursuit of a career in law enforcement.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20130019134





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ABCMR Record of Proceedings (cont)                                         AR20130019134



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