IN THE CASE OF:	  

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100024625 


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 general discharge to an honorable discharge.

2.  He states, in effect, he desires to have his general discharge upgraded to honorable.

3.  He 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.  His record shows he enlisted in the Regular Army on 12 January 1977.  The highest rank/grade he attained while serving on active duty was private/E-2.  

3.  His record reveals a disciplinary history that includes seven adverse counseling sessions during the period 28 June through 28 November 1977.  The offenses for which he was counseled include his failure to:

* maintain a military appearance
* maintain his military bearing
* arrive at his appointed place of duty at the time prescribed
* maintain his room at the proper level of order and cleanliness
* comply with orders from a noncommissioned officer

4.  His disciplinary history also includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for wrongful possession of marijuana.

5.  An Air Force Training Command (ATC) Form 125A (Record of Administrative Training Action) initiated by the Commander of the 3750th Technical Training Group, 3700th Technical Training Wing, Sheppard Air Force Base, TX, dated
1 December 1977, shows the applicant was eliminated from the Cable Installation/Maintenance Splicing Specialist course as a result of demonstrating he did not have the academic ability to meet the minimum requirements of the course to complete the course due to his poor attitude and lack of motivation.  The commander opined he was psychologically incapable of coping with military life, he had been a disciplinary problem, and he had been disciplined for numerous offenses.  The Deputy Commander of the 3700th Technical Training Wing approved the action on 7 December 1977. 

6.  His record contains two DA Forms 4187 (Personnel Action) showing he departed his unit in an absent without leave (AWOL) status on 3 January 1978 and that he was apprehended by military authorities on 5 January 1978.

7.  On 24 January 1978, the applicant's unit commander informed him he was initiating action to discharge him from the U.S. Army under the provisions of paragraph 5-37, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) with a General Discharge Certificate.  He informed the applicant the final decision rested with the discharge authority and that if he was issued a general discharge he could expect to encounter subsequent prejudice in civilian life.  The applicant was also informed of his rights to consult with legal counsel, to submit a statement in his own behalf, to decline this discharge, or he could waive any of these rights.  The commander cited the following as his specific reasons for this action:

* apathetic attitude
* personal slovenliness
* failure to repair
* lack of military bearing
* disregard for military rules and regulations
* constant tardiness and absence from formations
* failure to successfully complete the academic requirements for his military occupational specialty (MOS)

8.  On 24 January 1978, he acknowledged the commander's notification, elected to consent to the discharge action, and waived his right to submit a statement in his own behalf.  On 26 January 1978, the discharge authority approved his discharge primarily because:

* he failed to meet the minimum Army Standards for conduct and appearance
* although he had been in the Army over a year he had not attained an MOS
* he failed to respond to both counseling and NJP
* he was completely apathetic and lacked the desire and self-discipline to become a productive Soldier

9.  On 30 January 1978, he was discharged accordingly; his DD Form 214 (Report of Separation from Active Duty) confirms he was issued a General Discharge Certificate.  He had completed 1 year and 17 days of active service.

10.  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.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37 of the regulation provided that an individual was subject to separation for failure to demonstrate promotion potential.  Personnel whose performance of duty, acceptability for the Service, and potential for continued effective service fell below the standards required for enlisted personnel in the U.S. Army could be discharged.
A discharge under this provision was limited to:

* personnel who failed to be advanced to the pay grade of E-2 after 4 months of active service
* personnel who failed to demonstrate potential to justify advancement to the pay grade of E-3 after attaining the normal time-in-service and time-in-grade criterion for promotion to pay grade E-3 without a waiver

12.  The philosophy of this policy was that commanders would be able to anticipate and preclude the development of conditions which clearly indicate that Soldiers concerned were becoming problems to an extent likely to lead to board or punitive action which could result in their separation under conditions which would stigmatize them in the future.  The purpose of this policy was to provide commander's an appropriate means for separating such personnel before a punitive action became necessary.  When separation under this provision was warranted an honorable discharge was normally considered appropriate unless the Soldier's conduct clearly substantiated a general discharge.

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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his general discharge should be upgraded to an honorable discharge was carefully considered and determined to lack merit.

2.  His record reveals a disciplinary history that includes numerous adverse counseling sessions for various offenses, administrative removal from an MOS producing course, and his acceptance of NJP under the provisions of Article 15 of the UCMJ on two occasions for possession of marijuana.

3.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, for failure to demonstrate potential for promotion.  His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  In view of the foregoing, there is no basis for upgrading the applicant's general discharge to an honorable discharge.





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)                                         AR20100024625



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ABCMR Record of Proceedings (cont)                                         AR20100024625



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