IN THE CASE OF: BOARD DATE: 28 January 2016 DOCKET NUMBER: AR20150007188 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 discharge under honorable conditions be upgraded to an honorable discharge. 2. The applicant states he signed his DD Form 214 (Certificate of Release or Discharge from Active Duty) and was not told about his discharge. 3. The applicant provides: * DD Form 214 with a separation date of 28 December 1981 * DA Form 2-1 (Personnel Qualification Record - Part II) * DD Form 215 Correction to DD Form 214 * a letter, dated 13 April 2015, from National Personnel Records Center (NPRC), St. Louis, MO 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. On 29 August 1979, he enlisted in the Regular Army for 3 years. 3. On 8 January 1981, he accepted nonjudicial punishment (NJP) for violating a lawful general regulation. 4. Item 21 (Time Lost) of his DA Form 2-1 shows the following periods of absence without leave (AWOL): * 2 January 1981 * 27 May - 27 August 1981 * 7 October 1981 * 8 - 12 October 1981 5. On 23 November 1981, the applicant's commander notified him that he was initiating action to discharge him under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for unsuitability. 6. The commander advised the applicant of his right to: * consult with consulting counsel * have his case considered by a board of officers * appear in person before a board of officers * submit statements in his own behalf * be represented by counsel * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge 7. On 23 November 1981, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 13 of Army Regulation 635-200 for unsuitability. He did not submit any statements in his own behalf and he waived: * consideration by a board of officers * a personal appearance * representation by counsel 8. The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. 9. On 24 November 1981, the applicant’s commander recommended the applicant’s discharge under the provisions of chapter 13 of Army Regulation 635-200. The applicant’s commander stated, in effect: a. The applicant was never considered for a rehabilitative transfer to another unit due to his prolonged absences and minimum duty performance in his unit. He was assigned to this unit to participate in on-the-job training (OJT) in military occupational specialty (MOS) 64C (Motor Transport Operator). This was not completed due to his going AWOL prior to in-processing, lack of motivation, and size and danger of the unit equipment. b. The applicant had spent the majority of his time doing menial chores and details around the unit area. He managed to disappear all during the day with the excuses that he was in the area or wanted to go and see his psychiatrist. c. The applicant had the mental responsibility and maturity of a child. He was considered for a special court-martial for AWOL; however, conversations with his counselors at Mental Health revealed that he was not responsible and should not stand trial. Mental incapability was not allowed as a reason to bar him from reenlistment by the battalion career counselor. d. The applicant's behavioral habits were not within the minimum Army standards. The commander recommended that he be released from the military service. 10. On 1 December 1981, the applicant's commander recommended that he be separated from the service before expiration of his term of service for unsuitability because of inaptitude. 11. On 14 December 1981, the appropriate authority approved the request for elimination under the provisions of chapter 13, paragraph 13-4c, Army Regulation 635-200 and directed his service be characterized as general under honorable conditions. 12. On 28 December 1981, he was discharged under the provisions of chapter 13, paragraph 13-4c of Army Regulation 635-200 by reason of unsuitability - apathy defective attitude or inability to expend effort constructively. He had completed 2 years and 22 days of net active service that was characterized as under honorable conditions. He had 100 days of time lost. 13. There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations. 14. Army Regulation 635-200, in effect at the time, set forth the requirements and procedures for administrative discharge of enlisted personnel. a. Paragraph 13-4c 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. The regulation required that separation action was to 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. 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. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. DISCUSSION AND CONCLUSIONS: 1. The applicant contends when he signed his DD Form 214 he was not told about his discharge. His commander notified him, on 23 November 1981, that he was initiating action to discharge him under the provisions of chapter 13 of Army Regulation 635-200 and informed him of his rights. The applicant acknowledged he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation and its effects. He acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. 2. The applicant was properly and equitably discharged in accordance with regulations in effect at the time. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The records contain no indication of procedural or other errors that would have jeopardized his rights. 3. He was never able to complete his OJT for MOS 64C due to prolonged absences and lack of motivation. He had 100 days of time lost time. He did not meet the standards of acceptable conduct and performance of duty for Army personnel. He did not meet the criteria for 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) AR20150007188 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007188 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1