IN THE CASE OF:	  

		BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20140005639 


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 general under honorable conditions discharge to fully honorable.  

2.  He states he was discharged based on the reason listed on his DD Form 214 (Report of Separation from Active Duty) which describes post-traumatic stress syndrome (PTSS).  He states he is service-connected and has been recommended for 100 percent disability rating by a government therapist.

3.  He provides Discharge Upgrading and Discharge Review.

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 20 September 1973.  
3.  On 8 May 1974, he was convicted by a summary court-martial, contrary to his pleas, of disobeying a lawful command from his superior commissioned officer and behaving himself with disrespect toward his superior commissioned officer.  He was sentenced to confinement at hard labor for 20 days and a forfeiture of $150.00 pay for one month.

4.  His DA Form 20 (Enlisted Qualification Record) shows he was imprisoned from 12 April to 2 May 1974 (20 days).

5.  His disciplinary history also includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice on three occasions for the following offenses:

* failing to obey a lawful order
* failing to go at the time prescribed to his appointed place of duty on 27 August 1974 (twice) and 13 September 1974
* failing to maintain his bunk and equipment in an acceptable manner

6.  His unit commander notified him of pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsuitability - apathy, defective attitudes, or inability to expend efforts constructively.  He was advised of his rights.  

7.  On 25 September 1974, he acknowledged receipt of the proposed discharge action.  He consulted legal counsel, waived consideration of his case by a board of officers, waived personal appearance before a board of officers and submitted statements in his own behalf.  He expressed that there was a lack of communication and that if they [chain of command] had come to a mutual understanding things would have turned out differently.  He felt that things would have been different if at least one of his superiors had taken time to understand him and his position.  

8.  The unit commander recommended elimination action because of the applicant's apathy indicated by lack of motivation and sub-marginal performance of duty.   

9.  On 10 October 1974, the separation authority approved the separation action, waived rehabilitation requirements, and directed a general discharge.  

10.  He was discharged on 16 October 1974 under the provisions of Army Regulation 635-200, paragraph 13-5b(3) by reason of unsuitability – apathy, defective attitude, or inability to expend effort constructively.  He had completed 1 year and 7 days active military service with 20 days of lost time.  
11.  His service record is void of medical documentation which indicates he was diagnosed with any type of mental condition.

12.  There is no evidence the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a states 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 states that he was discharged based on the reason listed on his DD Form 214 which describes PTSS.  However, his service record is void of evidence indicating he was diagnosed with this mental condition prior to his discharge or that he raised his mental condition as a possible defense at the time.

2.  The applicant's administrative discharge proceedings under the provisions of Army Regulation 635-200, chapter 13 were conducted in accordance with law and regulations applicable at that time.

3.  The applicant's service record shows he was convicted by a summary court-martial and received three Article 15s during his period of active duty.

4.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general under honorable conditions.

5.  There is no evidence of record which indicates the actions taken in this case were in error or unjust.  Therefore, 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)                                         AR20140005639





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ABCMR Record of Proceedings (cont)                                         AR20140005639



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