IN THE CASE OF: BOARD DATE: 22 October 2013 DOCKET NUMBER: AR20130002890 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 discharge from general under honorable conditions to fully honorable. 2. He states he was told that after 6 months his discharge would be automatically upgraded to honorable. 3. He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 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 was inducted into the Army of the United States on 21 June 1972 and he held military occupational specialty 13A (Field Artillery Basic). The highest rank/pay grade he attained while serving on active duty was private/E-2. However, at the time of his discharge he held the rank/pay grade of private/E-1. 3. His record reveals acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code for Military Justice (UCMJ) on 1 August 1972 for willfully disobeying a lawful order from a noncommissioned officer (NCO) and being disrespectful in deportment toward different NCO. 4. His disciplinary history also shows he appeared before a special court-martial on two separate occasions where he was found guilty of violating the following Articles of the UCMJ for the specifications shown: a. Article 134: one specification of wrongful possession of one ounce, more or less, of a narcotic drug, to wit: marijuana. b. Article 91: two specifications of willfully disobeying a lawful order from an NCO and one specification of being disrespectful in language toward an NCO. c. Article 89: one specification of behaving with disrespect toward a commissioned officer. d. Article 90: one specification of willfully disobeying a lawful command from a commissioned officer. 5. The applicant's record contains a certificate rendered at the Mental Hygiene Consultation Service, Irwin General Hospital, Fort Riley, KS which shows he was psychiatrically evaluated on 27 September by a social worker and a psychiatrist. They noted the applicant was referred from the Fort Riley Confinement Facility. He related a fairly unstable social history, including a history of gang fights. He had been arrested once for theft; however, he denied being convicted. He had a ninth grade education. Since joining the Army in June 1972, he had received two special courts-martial for possession of marijuana, disobeying lawful orders, and being disrespectful. His performance since joining had been marred by several altercations with authority figures. His personality was characterized as an inadequate personality with paranoid tendencies. This was expressed through extensive manipulation, poor judgment, and an inability to control hostility. The evaluators opined there was no evidence of psychosis or neurosis or other disorders qualifying him for disposition through medical channels. It was also believed that he would not adjust to the military setting and further rehabilitative efforts would prove to be non-productive. They concluded the applicant was mentally competent to participate in board proceedings and recommended that he be separated from the military under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, due to unsuitability resulting from a character and behavior disorder. 6. On an unspecified date, the applicant's unit commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 for unsuitability. The unit commander also informed the applicant that he could receive a general discharge and be issued a General Discharge Certificate. The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, and to waive these rights in writing. 7. On 6 October 1973, having been advised by consulting counsel, he acknowledged the fact that he had been counseled regarding the basis for the contemplated separation, its effects, and the rights available to him. He was also informed that if he was issued a general discharge he could expect to encounter substantial prejudice in civilian life. He waived his rights to consideration of his case by a board of officers, personal appearance before a board of officers, submit statements in his own behalf, and to have representation by counsel. 8. On 6 October 1973, the unit commander recommended the applicant's separation from the Army under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5 for unsuitability. The unit commander cited as the basis for this action the applicant's diagnosis of having a character or behavior disorder. The commander also noted that discharge for unfitness was not deemed appropriate due to his inability to assimilate to the military environment. As a result, all attempts of counseling and rehabilitation had failed and the commander opined he did not meet the criteria for further rehabilitation attempts. The intermediate commander concurred and recommended approval. He also noted the applicant was currently confined for a period of 6 months. 9. On 11 October 1973, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, for unsuitability, and directed the issuance of a General Discharge Certificate. 10. On 21 October 1973, he was discharged accordingly. His DD Form 214 shows he was credited with 1 year and 15 days of active service, 97 days lost due to confinement, and 6 days of excess leave. 11. The applicant's record is devoid of any evidence and he did not provide any evidence that he was ever told his discharge would be automatically upgraded 6 months following his separation. 12. The applicant's record is void of evidence showing he appealed to the Army Discharge Review Board for an upgrade of his general discharge to fully honorable within that board's 15-year statute of limitations. 13. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of the regulation in effect at the time provided for separation due to inaptitude, personality disorder, apathy, and homosexuality (tendencies, desires, or interest but without overt homosexual acts). 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 was characterized as honorable or under honorable conditions. 14. Army Regulation 635-200, 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 AND CONCLUSIONS: 1. The applicant's request for an upgrade of his discharge was carefully considered and determined to lack merit. 2. His record is devoid of any evidence and he did not provide any evidence that he was ever told his discharge would be automatically upgraded 6 months following his separation. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. 3. The record shows he had multiple disciplinary infractions. In spite of his indiscipline, his chain of command was willing to allow him to remain on active duty and continue to serve. The available evidence clearly shows he was not responsive to the rehabilitative efforts of his command. 4. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an upgrade of his characterization of service from general under honorable conditions to fully honorable. 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) AR20130002890 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130002890 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1