IN THE CASE OF

		BOARD DATE:	    10 July 2014

		DOCKET NUMBER:  AR20130019306 


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, an upgrade of his under honorable conditions (general) discharge.  

2.  The applicant states that at his last duty station he transported hazardous materiel.  He was not privy to the contents but complained several times about his exposure.  On several occasions, the packaging material was not properly sealed.  He took more of a reactive approach rather than a proactive posture with his assigned sergeant whose recommendation led to the disposition on his DD Form 214 (Report of Separation from Active Duty).  Since his discharge, he has visited with many veterans throughout the country and has led a decent life.  He explains to his daughter the importance of discipline and structure.   

3.  The applicant provides his DD Form 214. 

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 27 April 1972 and he held military occupational specialty (MOS) 64C (Motor Transport Operator). 

3.  On 30 October 1972, while in training at Fort Gordon, GA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL from 10 to 16 October 1972. 

4.  Subsequent to completion of MOS training, he was reassigned to Headquarters Company, U.S. Army Natick Laboratories, Natick, MA.  While there, he accepted NJP under the provisions of Article 15 of the UCMJ on/for:

* 21 February 1973, being AWOL from 16 to 20 February 1973
* 31 July 1973, failing to go at the time prescribed to his appointed place of duty
* 24 October 1973, willfully violating a written order 

5.  On 7 November 1973, he underwent a mental status evaluation at the Community Mental Health Center.  He was determined to be administratively unsuitable for retention in the service due to lack of motivation and apathy.

6.  On 8 November 1973, the applicant’s immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of unsuitability.  Specifically, the immediate commander cited the applicant's habits and traits of character manifested by a complete lack of responsibility and rejection of military service.   His performance and lack of motivation is characterized by intentionally shirking his duties and by behavior rendering him repeatedly subject to Article 15s and/or court-martial action.  His behavior is not due to his incapacity to become a satisfactory Soldier. There were no grounds for other disposition.

7.  On 8 November 1973, the applicant acknowledged receipt of the notification of his pending separation action.  He was advised by counsel of the basis for the contemplated action to separate him for unsuitability under the provisions of Army Regulation 635-200.  He waived consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and he elected not to submit a statement in his own behalf.  He further indicated that he understood that he might expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him.  He also understood that in the event of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and may encounter substantial prejudice in civilian life.

8.  Subsequent to this acknowledgement, the applicant’s immediate commander initiated elimination action against the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsuitability.  His intermediate commander recommended approval.  

9.  On 14 November 1973, the separation authority approved the applicant’s discharge under the provisions of chapter 13 of Army Regulation 635-200 and directed issuance of a General Discharge Certificate.  Accordingly, the applicant was discharged on 16 November 1973.  

10.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with a character of service as under honorable conditions (general).  This form further shows he completed 1 year, 6 month, and 10 days of creditable active military service and he had 10 days of lost time.

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

12.  Army Regulation 635-200, chapter 13, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general under honorable conditions or an honorable discharge was considered appropriate.

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's records reveal a history of misconduct which includes three instances of NJP, two instances of AWOL, and multiple negative counseling for various disciplinary infractions.  He appears to have been provided with multiple counseling and/or opportunities for rehabilitation by various members of his chain of command but failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.

2.  His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.

3.  The quality of his service did not meet 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.  In view of the foregoing evidence, he is not entitled to 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)                                         AR20130019306



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ABCMR Record of Proceedings (cont)                                         AR20130019306



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