BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017405 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017405 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. BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017405 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 an upgrade of his general discharge to an honorable discharge. 2. The applicant states: a. At the time of his discharge, his father had passed away and he was not granted proper leave to grieve his loss. As a direct result, his depressed state and lack of motivation for military life was due to severe depression from the loss of his father. It caused him to have a mental lapse and made him resistant to adapt to the military way of life. b. He went absent without leave (AWOL) from 3 to 14 September 1980 to make funeral arrangements, bury his father, and to relieve some symptoms of depression due to this situation. After his father was properly buried, he returned and continued with his military life and was given an Article 15 for being AWOL. Due to depression from the loss of his father, he began to fail to adapt to military life and received two more Article 15s. One was for not going to his assigned place of duty and another for disobeying a direct order from his superiors. This was due to his mental state at the time caused by anxiety and depression from the loss of his father. 3. The applicant provides three DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ). 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 28 March 1979. He was assigned to Headquarters and Headquarters Company (HHC), 2nd Battalion, 8th Cavalry Regiment, Fort Hood, TX on 9 August 1979. 3. Between 14 July 1980 and 16 April 1981, he was frequently counseled by various members of his chain of command for missing formation, repeatedly failing to report to his appointed place of duty at the prescribed time, a lack of self-discipline, his negative attitude, a substandard uniform, not putting forth the effort required, failing to follow instructions, and failing to conduct himself in a Soldierly manner. 4. He was reported in an AWOL status from his assigned unit from 3 to 14 September 1980. 5. He received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, as follows on: * 17 September 1980, for one specification each of being AWOL from 3 to 14 September 1980, sleeping while on duty, wrongfully possessing marijuana, and violating a lawful general regulation by possessing fire crackers * 4 June 1981, for one specification each of disobeying a lawful order and being disrespectful in language toward a noncommissioned officer (NCO) * 11 June 1981, for three specifications of failing to be at his appointed place of duty 6. On 16 June 1981, he underwent a mental status evaluation. The examining physician found his behavior and thought content were normal, he was fully alert and oriented, his thinking was clear, he had no history of mental illness, and no mental illness was present at that time. He was mentally responsible, able to distinguish right from wrong, had the mental capacity to understand and participate in board proceedings, and he did meet retention standards under the provision of Army Regulation (AR) 40-501 (Standards of Medical Fitness) chapter 3. 7. On 1 July 1981, he was notified by his immediate commander that separation action was being initiated against him under the provisions of AR 635-200 (Personnel Separations - Enlisted Separations), chapter 13, for unsuitability. His commander stated the specific reasons were apathy, defective attitudes, and inability to expend effort constructively. 8. On 1 July 1981, the applicant acknowledged receipt of the notification for his proposed separation action. On 1 July 1981, he consulted with legal counsel and 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 waived consideration of his case by a board of officers and declined to submit a statement in his own behalf. 9. His intermediate and senior commanders subsequently recommended approval of the separation action. 10. On 7 July 1981, the applicant was placed on excess leave pending the processing of his discharge. 11. The separation authority subsequently approved his separation under the provisions of AR 635-200, chapter 13, and directed the issuance of a General Discharge Certificate. On 29 July 1981, he was discharged accordingly. 12. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of AR 635-200, paragraph 13-4c(2), with an under honorable conditions (general) characterization of service. 13. His record is void of any evidence that shows he requested leave for his father's death and his request was denied. His record is void of any evidence that shows he requested help for dealing with depression or any personal problems/issues he may have been experiencing at the time. 14. 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. REFERENCE: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 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 on three occasions for numerous infractions to include being AWOL and possessing marijuana. 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 have jeopardized his rights. The type of discharge directed and the reason for separation were appropriate considering all the facts of the case. 3. Notwithstanding the applicant's contention that his misconduct was due to depression as a result of his father's death, the evidence of record is void of evidence to support this contention. 4. Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017405 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017405 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2