IN THE CASE OF: 

		BOARD DATE:	    10 July 2014

		DOCKET NUMBER:  AR20130019567 


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 correction of his character of service, separation code, and reenlistment code.

2.  The applicant states his discharge was improper or inequitable and not consistent with the requirements of Army Regulation 635-200 (Personnel Separations) including any regulation and/or executive orders pertaining to counseling and rehabilitative service in favor of retention.

3.  In a letter, dated 21 October 2013, he states:

	a.  His discharge was improper and/or inequitable and his commander initiated the administrative separation erroneously and/or willfully neglected to follow the requirements of Army Regulation 635-200 (guidelines on separations, counseling and rehabilitation requirement, instruction in benefits of an honorable discharge, action by unit commander when Soldier is under military control, separation and medical examinations, and types of administrative discharges).

	b.  The miscarriage of justice and the failure and neglect to apply the requirements of the separation authority on the part of the commander initiating the administrative separation caused him undue hardship.

	c.  In 1981, he was experiencing marital and financial problems and he resorted to drinking.  By the time he referred himself to the post's substance abuse program, it was too late because he committed indecent acts and assault on two female Soldiers during an alcoholic blackout.

	d.  After his release from the stockade, he tried to explain to his commander that it was the marriage and not his military career that he was having problems with.  But his cries for help kept falling on deaf ears.  He was very disappointed in his chain of command for their inability to help guide him in solving these problems or helping him find direction.  The drinking continued and so did the fights with his ex-wife until finally he broke down and he ran away from it all.  He turned himself in a week later.  He was discharged 2 weeks later.

	e.  Once a civilian, his ex-wife disappeared with the children and he never heard from them again.  He continued to medicate the emotional pain with alcohol and drugs.  The lifestyle of a homeless alcoholic/drug addict landed him in and out of jail for years.  In 2001, he entered a rehabilitation facility which helped him turn his life around.  Although it took him a decade to completely recover from his disease of addiction, today he is living an alcohol/drug free life.

	f.  He found his daughter and son through the Internet when they were 27 and 29 years old, his criminal records have been expunged, and he is the program director at a drug and alcohol rehabilitation facility.

4.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty) for the period ending 24 May 1977
* DD Form 214 (Certificate or Release or Discharge from Active Duty) for the period ending 30 April 1982
* Department of Veterans Affairs Medical Center Progress Notes
* Sacramento County Department of Health and Human Services – Alcohol and Drug Services Division – Alcohol and Other Drug Preliminary Assessment
* self-authored summary of convictions
* Mi Case Recovery Home Certificate of Completion
* court documents

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 U.S. Army Reserve on 2 November 1976.  He was ordered to active duty for training on 13 February 1977 and he was released from active duty on 24 May 1977.

3.  He enlisted in the Regular Army on 15 May 1978 and served as an administrative specialist.  He was advanced to the rank of specialist four on 14 August 1979.  On 10 January 1980, he was honorably discharged for immediate reenlistment.  He reenlisted on 11 January 1980 for a period of 3 years.

4.  On 20 July 1981, he was convicted by a special court-martial of committing an indecent, lewd, and lascivious act in the presence of a female Soldier; committing an assault upon a female Soldier; and committing an indecent assault upon a female Soldier.  He was sentenced to confinement at hard labor for 3 months and reduction to pay grade E-1.  On 28 October 1981, the convening authority approved the sentence.

5.  Records show he was absent without leave on 7 April 1982.

6.  His records contain a DA Form 2496 (Disposition Form) from the Chemistry Section Noncommissioned Officer in Charge (NCOIC), dated 8 April 1982, subject:  Failure to Repair, (Applicant), which states:

	a.  The applicant came to the Chemistry Section under a lot of stress with family and financial problems.  Because of this, his unit made a special effort to ensure that he was given the opportunity to straighten out his life.  Based on his excellent performance of duty, his unit recommended his promotion as quickly as possible to alleviate his financial difficulties and authorization to stay in government quarters, although he was not authorized as a private/E-1.

	b.  The applicant had been counseled on numerous occasions and his unit referred him and his wife to the family crisis counselors.  In spite of all the efforts, he continued to be a problem.

	c.  On 7 April 1982, he failed to report for duty and he still was not present for duty on 8 April 1982.

	d.  The Chemistry Section NCOIC requested appropriate action against him for failure to repair.

7.  An endorsement to the same DA Form 2496 from the Department of Pathology NCOIC, dated 8 April 1982, states the applicant continued to have numerous problems, both on and off duty.  His supervisors felt they had done all they could possibly do to help him.  The Department of Pathology NCOIC requested the applicant's release from the Department of Pathology and his consideration for elimination from the service.

8.  He returned to military control on 16 April 1982.

9.  On 19 April 1982, he underwent a separation physical examination and was found to be qualified for separation.

10.  On 20 April 1982, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-200 for unsuitability due to apathy, defective attitudes, and inability to expend effort constructively.

11.  On 21 April 1982 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 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 that a general discharge were issued to him.  He elected not to submit a statement in his own behalf.

12.  On 23 April 1982, the separation authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.

13.  On 30 April 1982, the applicant was discharged for unsuitability under the provisions of Army Regulation 635-200, chapter 13, due to apathy and defective attitude or inability to expend effort constructively.  He completed 4 years and 8 days of total active service with 82 days of lost time.

14.  His DD Form 214 for the period ending 30 April 1982 shows in:

* item 25 (Separation Authority) –ARMY REGULATION 635-200, PARAGRAPH 13-4C(2)
* item 26 (Separation Code) – JMJ
* item 27 (Reentry Code) – RE-3/3B/3C
* item 28 (Narrative Reason for Separation) – UNSUITABILITY – APATHY, DEFECTIVE ATTITUDE OR INABILITY TO EXPEND EFFORT CONSTRUCTIVELY

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

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

	a.  Chapter 13, 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, currently in effect, 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.

17.  Army Regulation 635-200 further states individuals will be assigned reentry eligibility (RE) codes based on their service records or the reason for discharge prior to discharge or release from active duty.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 provides a list of RE codes.

	a.  RE-1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

	c.  RE-3B, in effect at the time, applied to individuals who had time lost during their last period of service.

	d.  RE-3C, in effect at the time, applied to individuals who had completed over 18 months service who do not met the basic eligibility pay grade requirements or who had been denied reenlistment under the Qualitative Screening Process.

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation states the reason for discharge based on separation code JMJ is "unsuitability – apathy, defective attitude or inability to expend effort constructively" and the regulatory authority is Army Regulation 635-200, paragraph 13-4c.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge was improper and/or inequitable and his commander initiated the administrative separation erroneously and/or willfully neglected to follow the requirements of Army Regulation 635-200 (guidelines on separations, counseling and rehabilitation requirement, instruction in benefits of an honorable discharge, action by unit commander when Soldier is under military control, separation and medical examinations, and types of administrative discharges).  However, the evidence shows:

	a.  His unit tried to assist him by recommending his promotion as quickly as possible to alleviate his financial difficulties and authorization to stay in government quarters.

	b.  He was counseled on numerous occasions and his unit referred him and his wife to the family crisis counselors.

	c.  He underwent a separation physical examination on 19 April 1982 and was found qualified for separation.

2.  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.

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

4.  His record of service during his last enlistment included one special court-martial conviction and 82 days of lost time.  As a result, his record of service was insufficiently meritorious to warrant an honorable discharge.

5.  His separation code and RE code were administratively correct and in conformance with applicable regulations at the time of his separation.  Therefore, there is no basis for granting the applicant's request to change these codes.

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 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)                                         AR20130019567



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ABCMR Record of Proceedings (cont)                                         AR20130019567



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