IN THE CASE OF:	  

		BOARD DATE:	        24 March 2009

		DOCKET NUMBER:  AR20080015022 


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 that his general under honorable conditions discharge be upgraded to an honorable discharge.  He further requests that his active duty entry date be corrected to show 26 April 1972.

2.  The applicant states, in effect, that the changes are needed for a job promotion.

3.  The applicant provides no addition documentation in support of this case.

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's record contains a DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 26 April 1973, that shows the applicant's basic active service date (BASD) as 26 April 1973 and that he enlisted for a 3-year term of service.

3.  The applicant enlisted into the Regular Army on 26 April 1973.  He completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 15B (Missile Crewman).  

4.  The applicant arrived in Germany and was assigned to the 1st U.S. Army Artillery Detachment on or about 10 September 1973.  On 30 August 1974, the applicant was disqualified from his Nuclear Duty Position for unauthorized use of a controlled substance - marijuana.  On 9 September 1974, he was awarded MOS 11C (Infantry Indirect Fire Crewman).  On or about 21 September 1974, the applicant was reassigned to Combat Support Company, 2nd Battalion, 30th Infantry.

5.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates: 
29 January 1975 for his repeated insistence that he be allowed to go to his room and 7 February 1975 for lack of promotion due to his attitude.

6.  On 25 March 1975, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order.

7.  On 16 May 1975, the applicant accepted NJP under Article 15, UCMJ, for two offenses of disobeying a lawful order.

8.  On 19 May 1975, the applicant was formally counseled for interfering with the duty of a uniformed Policeman.

9.  On 22 May 1975, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsuitability.  The reason cited by the commander was the applicant's apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  The commander further stated that since the applicant's assignment to the unit his performance had been marginal and mostly unsatisfactory.

10.  On 5 February 1975, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the 
impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13.  The applicant declined counsel, waived his right to be heard by a board of officers, and elected not to provide statements in his own behalf.  

11.  On 5 June 1975, the appropriate authority approved the recommendation and directed the applicant receive a General Discharge Certificate under the provisions of chapter 13 of Army Regulation 635-200 for unsuitability.  On 
19 June 1975, he was separated from the service after completing 2 years, 
1 month, and 24 days of creditable active service.  Item 15 (Date Entered Active Duty this Period) of the applicant's DD Form 214 (Report of Separation from Active Duty), with the period ending 19 May 1975, shows the entry "73 4 26"
[26 April 1973].

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of that regulation provides, in pertinent part, that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that, in the commander’s judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

13.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to an honorable discharge and that his active duty entry date be corrected to show 
26 April 1972.  However, the ABCMR does not grant relief solely for the purpose of job promotion.

2.  The applicant's records show that he received two Article 15s, he was counseled on several occasions for his misconduct, and he was disqualified from his Nuclear Duty Position for unauthorized use of marijuana.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.

3.  The applicant's DD Form 4 and DD Form 214 correctly show that he entered active duty on 26 April 1973.  There is no evidence and the applicant has not provided evidence that shows he entered active duty on 26 April 1972.  Therefore, there is no basis for this argument.

4.  The applicant's administrative separation was accomplished in accordance with applicable regulation with no indication of procedural errors that would tend to jeopardize his rights.

5.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

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.


															XXX
      ______________________
               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)                                         AR20080015022



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ABCMR Record of Proceedings (cont)                                         AR20080015022



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