IN THE CASE OF:  	  

		BOARD DATE:  28 May 2015	  

		DOCKET NUMBER:  AR20140017767 


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 reconsideration of his earlier request for an upgrade of his general discharge (GD) to an honorable discharge (HD).

2.  The applicant states:

   a.  his brother's record is mixed up with his record; and
   
   b.  the charges cited against him in his original Army Board for Correction of Military Records (ABCMR) Record of Proceedings are incorrect and do not represent his true character at the time of his discharge from military service.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130014316, on 15 April 2014.

2.  The applicant provides a new argument which warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 12 April 1977.  He was trained in and awarded military occupational specialty 51C (Structure Specialist).
4.  His record contains six DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) prepared in his name and social security number and authenticated with his signature on the dates indicated below.  These documents show he was administered non-judicial punishment (NJP) under the provisions of Article 15 of the UCMJ six times for the reasons indicated on: 

* 10 November 1980, for failing to report for charge of quarters duty on 12 October 1980
* 18 December 1980, for speeding while operating a privately owned vehicle and failing to have an operators permit in his possession on 
30 October 1980
* 6 February 1981, for assaulting another Soldier by striking him in the left side of his face with his open hand on 18 December 1980
* 30 June 1981, for –

o violating a lawful regulation on 9 April 1981, by operating a government owed vehicle without a valid military operator's license
o willfully and knowingly using a false document with the intent to designate individuals (himself, in particular) to receive a permit to operate military vehicles on 1 April 1981
o willfully and knowingly using a false document to obtain a driver's permit allowing the operation of a motor vehicle by U.S. Forces personnel

* 12 February 1982, for being absent without leave (AWOL) from 
6 December 1981 until on or about 31 January 1982
* 29 March 1982, for failing to go at the time prescribed to his appointed place of duty on three separate occasions 4, 5, and 8 March1982, and for leaving the unit morning inspection formation on 4 March 1982

5.  On 29 April 1982, the immediate commander notified the applicant of his intention to initiate action to effect his separation from the Army under the provisions of paragraph 13-4c, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of unsuitability (apathy).  He cited the applicant's continued apathy (lack of appropriate interest, defective attitude and inability to expend effort constructively) as the basis for the separation action.

6.  On 30 April 1982, the applicant acknowledged receipt of the separation action taken against him, he consulted with legal counsel, and he was advised of the basis for the contemplated separation for unsuitability, the type of discharge and its effect on further enlistment or reenlistment, and of the procedures/rights that 

were available to him.  He further acknowledged that he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life in the event an under other than honorable conditions discharge was issued to him.  He waived consulting counsel and elected not to submit a statement on his own behalf.

7.  Accordingly, the applicant's immediate commander recommended separation action against the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsuitability.  The immediate commander also recommended the rehabilitative transfer be waived due to the applicant's apathetic attitude toward the military, his inability to adjust to the regimen of military life, and his stated intent to do anything to get out of the service.  He had received considerable counseling, but he did not respond favorably.  His chain of command recommended approval of the discharge action.

8.  On 9 June 1982, the separation authority directed the applicant’s discharge under the provisions of paragraph 13-4c(2), Army Regulation 635-200, by reason of unsuitability-apathy, defective attitude or inability to expend effort constructively with a GD.  On 15 June 1982, the applicant was discharged accordingly.

9.  The DD Form 214 he was issued confirms he was discharged under honorable conditions and issued a GD.  This form further confirms that he completed 5 years, 1 month, and 7 days of creditable active military service and he accrued 57 days of time lost.

10.  On 27 May 1993, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable.  Accordingly, the ADRB denied his request for an upgrade of his discharge.

11.  On 15 April 2014, the ABCMR also reviewed his discharge and found insufficient evidence of an error or an injustice.  Accordingly, the ABCMR denied his request for an upgrade of his discharge. 

12.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.

   a.  Chapter 13 of the version of the regulation in effect at the time of the applicant’s discharge applied to separation for unfitness and unsuitability.  It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitude, and an inability to expend effort constructively.  When separation for unsuitability was warranted an HD or a GD was issued as determined by the separation authority based upon the individual’s entire record.

   b.  Paragraph 3-7a provides that an HD 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 contends his GD should be upgraded to an HD because his record contains misfiled documents that belong to his brother and that the charges against him are not his own.  However, the evidence of record confirms that each document contained in the applicant's military record belongs to and/or references the applicant and when required, he authenticated these documents with his signature.

2.  The available evidence shows the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record reveals an extensive disciplinary history that includes six records of NJP and his accrual of 57 days of lost time due to being AWOL.  This record of misconduct clearly diminished the overall quality of his service below that warranting the issuance of an HD.  Therefore, it would be inappropriate to upgrade his discharge at this late date.

4.  In view of the above, 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 to amend the decision of the ABCMR set forth in Docket Number AR20130014316, dated 15 April 2014.




      _______ _   _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)                                         AR20140017767



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ABCMR Record of Proceedings (cont)                                         AR20140017767



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