IN THE CASE OF: BOARD DATE: 6 February 2018 DOCKET NUMBER: AR20160006795 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 IN THE CASE OF: BOARD DATE: 6 February 2018 DOCKET NUMBER: AR20160006795 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. IN THE CASE OF: BOARD DATE: 6 February 2018 DOCKET NUMBER: AR20160006795 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 under honorable conditions (general) characterization of service to an honorable characterization of service. 2. The applicant states his characterization of service was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action. 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. The applicant enlisted in the Regular Army on 15 November 1974. He successfully completed basic combat training (BCT) and advanced individual training (AIT) and he was awarded military occupational specialty (MOS) 12B (Combat Engineer). 3. On 14 January 1975, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for absenting himself from his appointed place of duty from on or about 1600 hours 12 January through on or about 1000 hours 13 January 1975. 4. His records contain: a. Record of Formal Counseling dated 22 November 1977, in which the applicant was counseled for his lack of motivation and initiative as well as his bad attitude toward work. b. Record of Counseling and Rehabilitation Attempts dated 3 January 1978, in which the applicant was counseled by his immediate commander about his return from 32 days of being absent without leave (AWOL). It was noted that on two separate occasions the applicant ignored his chain of command and went AWOL. The applicant did not express or show sincerity toward taking rehabilitative measures of either a personal or professional nature and he was informed that continued behavior of a similar nature may result in transfer from the unit or elimination from service. c. Unit Commander’s Request for Mental Hygiene Consultation dated 5 January 1978, which shows his unit commander noted the applicant suffered from extreme family and personal problems. Rather than attempt to achieve rehabilitation, the applicant decided to request a discharge. d. Record of Counseling and Rehabilitation Attempts dated 9 January 1978, in which the applicant was counseled for going AWOL for 30 days after he took his wife to seek medical care because he believed she was not getting good medical care from Army physicians. At this time the counselor recommended discharge for misconduct. 5. On 5 January 1978, the applicant signed a document acknowledging that consulting counsel advised him that his commander was contemplating action to separate him for unfitness under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, based on unsuitability due to apathy, defective attitudes, or inability to expend effort constructively. Consulting counsel also advised him of the bases for the contemplated separation, its effects, of the rights available to him, and of the effects of any action taken to waive his rights. a. The applicant waived consideration of his case before a board of officers, waived a personal appearance hearing before a board of officers, and indicated that he would not submit statements in his own behalf. The applicant also waived his right to representation by counsel. b. The applicant acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him 6. On 6 January 1978, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 13-5, by reason of unsuitability. His immediate commander further requested a waiver of further counseling and rehabilitation. He stated the applicant was unable to expend effort constructively and had allowed his personal problems to grow to such an extent that they completely prevented his functioning as a Soldier. His commander also noted the applicant was resisting all efforts at rehabilitation and his commander felt if the applicant's discharge was not approved he would go AWOL again. 7. On 11 January 1978, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a General Discharge. 8. On 25 January 1978, the applicant was discharged accordingly. His DD Form 214 (Report of Separation from Active Duty) confirms he was separated under the provisions of Army Regulation 635-200, paragraph 13-5b(3), with an under honorable conditions (general) characterization of service. He completed 3 years, 1 month, and 9 days of total active military service with 33 days of lost time. 9. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 31 August 1995, he was notified the ADRB denied his request for an upgrade to the characterization of his discharge. REFERENCES: Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel: a. Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. It 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. 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. 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: 1. His record shows he possessed the necessary skills to successfully complete BCT and AIT in order to be awarded MOS 12B. Contrary to his contentions, his record also shows extensive counseling and a disciplinary history, which included two instances of being AWOL. 2. The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsuitability due to apathy, defective attitudes, or inability to expend effort constructively. His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier. 3. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge at the time was normally an honorable or general discharge and the applicant was made aware of this prior to his discharge. The separation authority determined his service did not rise to the level required to be characterized as honorable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006795 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006795 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2