IN THE CASE OF:	  

		BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140016722 


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

2.  The applicant states at the time of his discharge he was going through personal hardships.  If his past military records are checked, it would show his performance was always excellent until this incident.

3.  The applicant provides no additional evidence.

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.  Having had prior active and inactive service, the applicant enlisted in the Regular Army on 29 March 1982 in the rank/grade of specialist four/E-4 and military occupational specialty 19E (Armor Crewmember).  He was assigned to the 2nd Battalion, 34th Armor, 4th Infantry Division, Fort Cason, CO.  

3.  Between 30 June and 22 August 1982, he was frequently counseled by various members of his chain of command for his negative attitude, not putting forth the effort required, failing to follow instructions, and for repeatedly failing to report to his appointed place of duty at the required time.

4.  On 21 July 1982, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for willfully disobeying a lawful order.  Part of the punishment imposed was reduction to private first class (PFC)/E-3.

5.  On 25 August 1982, he underwent a mental status evaluation.  The examining psychiatrist found his behavior and thought content were normal, he was fully alert and oriented, he had no history of mental illness, and no psychiatric illness was present at that time.  He was psychiatrically cleared for any administrative action deemed appropriate by the command.  

6.  On 30 August 1982, he was notified by his immediate commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 13 for unsuitability - apathy.  His commander stated he was recommending him for a general discharge. 

7.  He acknowledged receipt of the notification of his proposed separation action. He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, of the procedures and rights available to him, and the possible effects of a general discharge.  He declined to submit a statement in his own behalf.

8.  On 1 September 1982, he received NJP under the provisions of Article 15, UCMJ, for three specifications each of uttering bad checks at the Fort Carson Post Exchange.  Part of the punishment imposed was reduction to private (PVT)/E-1.

9.  His senior commander subsequently recommended approval of the separation action. 

10.  On 14 October 1982, the separation authority approved his separation under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a General Discharge Certificate.  On 27 October 1982, he was released from active duty and he was transferred to the U.S. Army Reserve.
11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service confirms he was separated under the provisions of Army Regulation 635-200, chapter 13, for unsuitability, apathy, defective attitude, or inability to expend effort constructively.

12.  His record is void of any evidence that shows he requested help with or assistance for any personal problems or issues he may have been experiencing at the time.

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

14.  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 set forth the basic authority, established the policy, and prescribed the procedures for separating members for unsuitability (apathy, defective attitude and inability to expend effort constructively).  Members separating under this provision of the regulation could receive either an honorable or a general discharge.  

15.  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 evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received for disobeying a lawful order and uttering bad checks, and the numerous times he was counseled for his poor performance, attitude, and repeatedly failing to report.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.

3.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to 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)                                         AR20140016722





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ABCMR Record of Proceedings (cont)                                         AR20140016722



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