BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20150011854 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: 28 June 2016 DOCKET NUMBER: AR20150011854 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: 28 June 2016 DOCKET NUMBER: AR20150011854 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 service characterization, from under honorable conditions (general) to honorable. He also requests a personal appearance before the Board. 2. The applicant states, in effect, he never understood why he was discharged for the very same thing he was trained for. He went through some personal turmoil with his wife and saw two of his friends fatally injured in parachute accidents at Fort Bragg, so he decided to terminate his jump status. He felt the military did not support him anymore and he has held this injustice inside for many years. 3. The applicant provides no additional evidence in support of his request. 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 16 January 1979. He completed his military training and was awarded military occupational specialty (MOS) 11B (Infantryman). He was later awarded MOS 11C (Indirect Fire Infantryman) as his secondary MOS. The highest rank/grade he attained during his military service was specialist four (SP4)/E-4. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions: a. on 12 March 1981, for failure to go at the time prescribed to his appointed place of duty, to wit: company formation on 15 February 1981; b. on 10 December 1981, for failure to go at the time prescribed to his appointed place of duty, to wit: company formation on 1 December 1981 and on 2 December 1981; and c. on 8 March 1982, for failure to go at the time prescribed to his appointed place of duty, to wit: company heavy drop detail on 12 February 1982. 4. Orders 41-99, issued by Headquarters, 82nd Airborne Division, Fort Bragg, North Carolina, on 2 March 1982, terminated his parachutist pay duty status on 2 March 1982 and revoked his Parachutist Badge on 16 February 1982. These orders note the applicant deliberately terminated his airborne status. 5. The applicant's immediate commander notified him on or about 26 July 1982 of his intent to initiate elimination actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsuitability – apathy, defective attitudes. 6. The applicant's immediate commander also submitted an undated written statement, wherein he stated the following: This statement concerns the performance of [the applicant] since his assignment to my company in May of this year [1982]. He came to us as a [rehabilitative] rehab transfer from the 82d Airborne Division. His performance has been marked by numerous [failures to repair] FTRs, severe marital problems, passing bad checks, and general lack of motivation. [The applicant] requested a Chapter 13 from me stating that he no longer had a desire to remain in the Army. I believe that he does not have the potential to proceed to the next rank and that this discharge is in the best interests of the Army and the individual. 7. The applicant consulted with legal counsel and was advised of the basis of the proposed separation action on or about 27 July 1982. He acknowledged the fact that he had been counseled regarding the basis for the contemplated separation, its effect, and the rights available to him. He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him. He elected not to submit statements in his own behalf. 8. His immediate commander recommended his discharge on 28 July 1982, under the provisions of Army Regulation 635-200, chapter 13, for unsuitability. His commander stated the applicant had exhibited unsuitability through actions and interests that were detrimental to the maintenance of good order and discipline. He had a record of minor misconduct requiring corrective or disciplinary action and had shown no potential for promotion or retention in the U.S. Army. His behavioral characteristics and attitude would cause further problems and he was a poor example for new Soldiers. He had a serious problem coping with peers and his chain of command. 9. The applicant's intermediate commander recommended his discharge on 29 July 1982, under the provisions of Army Regulation 635-200, chapter 13, for unsuitability. 10. A mental status examination was conducted on or about 30 July 1982; however, these documents are not available for review in this case. 11. The separation authority approved the applicant's discharge on 2 August 1982, under the provisions of Army Regulation 635-200, paragraph 13-4 (c), by reason of unsuitability, and directed his service be characterized as under honorable conditions (general). 12. The applicant was discharged from the Army on 6 August 1982. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged by reason of unsuitability – apathy, defective attitudes, with a character of service as under honorable conditions (general). 13. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel. a. 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. b. Chapter 13 of the regulation in effect at the time provided for separation due to inaptitude, personality disorder, and apathy. The regulation required that separation action would 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. Service of Soldiers separated because of unsuitability under this regulation were characterized as honorable or under honorable conditions. 2. Army Regulation 15-185 (ABCMR) provides that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's request for an upgrade of his service characterization from under honorable conditions (general) to honorable was carefully considered. 2. The applicant's duty performance and behavioral characteristics were deemed substandard, based on three instances of NJP, a period of negative counseling, a poor attitude, and his own desire to be separated out of military service. 3. It appears he was provided counseling and/or multiple opportunities for rehabilitation by various members of his chain of command, and was transferred to another unit for a fresh start, but he failed to respond constructively. Accordingly, his chain of command initiated separation action against him. 4. His discharge was processed in accordance with applicable regulations and all requirements of law and regulation were met, and his rights were fully protected throughout the separation process. Further, based on the available record, his service appears not to have met the standards of acceptable conduct and performance of duty for Army personnel; therefore, his discharge accurately reflects his overall record of service. 5. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. A formal hearing may be authorized by the Board or by the ABCMR Director whenever justice requires. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011854 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011854 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2