BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006960 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 8 May 2018 DOCKET NUMBER: AR20160006960 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 under honorable conditions (general) discharge be upgraded to an honorable discharge. 2. The applicant, in effect, states his mother died during basic training and advanced individual training. He was sent on emergency leave and missed the rest of his basic training. The loss affected his ability to comprehend what his job would be. It caused great sadness and depression, which he still suffers from to this day. The lack of compassion by his unit caused apathy, the direct result of having lost his mother. Nonjudicial punishments (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) began and he felt a lack of concern for his situation, causing his change in name. 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 1 February 1977. He completed initial entry training and was awarded military occupational specialty 76P (Stock Control Specialist). 3. The applicant served successfully at Fort Knox, KY and in the Republic of Korea through his discharge for immediate reenlistment on 27 August 1979. 4. The applicant reenlisted on 28 August 1979 without a break in service, and was subsequently assigned to Fort Carson, CO. 5. The applicant received NJP under the provisions of Article 15 of UCMJ on the following dates: a. on 10 December 1979, for violating Article 86 of the UCMJ; specifically for failing to repair on or about 3 December 1979; b. on 11 January 1980, for two specifications of violating Article 86 of the UCMJ; specifically for failing to repair on or about 4 January 1980 and on or about 5 January 1980; c. on 17 January 1980, for violating Article 86 of the UCMJ; specifically for failing to repair on or about 10 January 1980; and d. on 24 April 1980, for violating Article 86 of the UCMJ; specifically for failing to repair on or about 17 April 1980. 6. The applicant’s company commander notified him on 4 December 1980 that he was initiating separation actions to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsuitability - apathy. The applicant acknowledged receipt of the proposed separation notification that same day. 7. The applicant's company commander recommended him for separation on 4 December 1980, by reason of unsuitability, and requested a waiver for counseling. In addition to the NJP listed above, the company cited two additional instances when the applicant received NJP, on 23 January and 12 May 1980 (these Article 15s are not available for review). 8. The applicant's record is void of evidence that shows he consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights. 9. The separation approval authority approved the request to waive counseling on 5 December 1980 and directed the applicant's separation from the Army under the provisions of Army Regulation 635-200, chapter 13, and prior to his expiration term of service date. He directed the applicant be furnished a General Discharge Certificate and not be transferred to the Individual Ready Reserve. 10. The applicant was discharged on 11 December 1980. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 13-4c, and his character of service was under honorable conditions (general). 11. The applicant did not apply to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation 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. 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. c. Paragraph 13-4c provides for separation due to apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. Members who have completed their military service obligation, and members whom the separation authority determines, for some specific reason, have no potential for useful service under conditions of full mobilization will be discharged. Service of Soldiers separated because of unsuitability under this regulation will be characterized as honorable or under honorable conditions. d. Paragraph 13-6 provides for counseling requirements. When a member's behavior has been such that continued behavior of a similar nature may warrant action against him/her, the member will be counseled by a responsible person or persons. Each counseling session will be recorded on DA Form 4856 (General Counseling Form). Counseling will include, but will not be limited to the following: * reasons for counseling * the fact that continued behavior of a similar nature may result in initiating elimination actions * the type of discharge that may be issued and the effect of each type if such action is taken and separation accomplished e. Paragraph 13-8 provides for counseling waivers. The special or general court-martial convening authority may waive the counseling requirement when he/she determines that further duty of the individual would, in his/her best judgement: (1) Create serious disciplinary problems or a hazard to the military mission or to the individual himself; or (2) Be inappropriate because the individual is obviously resisting all rehabilitation attempts or that rehabilitation would not produce the quality Soldier desired by the Army. DISCUSSION: 1. The applicant requests an upgrade of his under honorable conditions (general) discharge. 2. The applicant received NJP on numerous occasions before his company commander decided to initiate separation actions against him for unsuitability. The separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 13. Discharges under this regulatory provision are involuntary. 3. The separation authority waived the counseling requirement, which was his prerogative. The applicant's involuntary discharge under the provisions of Army Regulation 635-200, chapter 13-4c, was administratively correct and in conformance with applicable laws and regulations. Furthermore, the separation authority determined his overall record of service did not rise to the level required for an honorable discharge. BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006960 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006960 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006960 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2