IN THE CASE OF:	  

		BOARD DATE:	    5 May 2011

		DOCKET NUMBER:  AR20100026057 


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 under honorable conditions to an honorable discharge.

2.  The applicant states he has not violated any laws at the local, State, or Federal level since he was discharged and an upgrade of his discharge would allow him to file for additional veterans' benefits, medical care, and employment.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) in support of his application.

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 for a period of 3 years on 27 August 1973.  Upon completion of training he was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was promoted to specialist four (SP4)/pay grade E-4 on 1 September 1975.

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for misconduct on 13 June 1974, 12 February 1975, and 17 February 1976.  He was reduced from SP4/E-4 to private/pay grade E-1 on 17 February 1976.

4.  On 18 February 1976, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 13 (Unsuitability), based on the commander's judgment that the applicant's duty performance and conduct had declined below standards acceptable for Soldiers.  He noted the applicant received NJP for sleeping on duty and possession of marijuana and he had been counseled on several occasions with respect to his appearance and inability to improve his performance.  In addition, despite rehabilitative efforts, the applicant's actions indicated an inappropriate interest in military service.  The applicant was advised of his rights and the separation procedures involved.

5.  On 27 February 1976, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and of the effect of a waiver of his rights.  The applicant:

	a.  waived a personal appearance before and consideration of his case by a board of officers,

	b.  waived representation by military counsel,

	c.  elected not to submit statements in his own behalf,

	d.  was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him, and

	e.  placed his signature on the document along with his counsel's.

6.  The immediate and intermediate commanders recommended approval of the applicant's separation action.

7.  On 3 March 1976, the separation authority approved the chain of command's recommendation for discharge of the applicant and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13, for unsuitability and issued a General Discharge Certificate.

8.  The applicant's DD Form 214 shows he was discharged on 11 March 1976 under the provisions of Army Regulation 635-200, paragraph 13-5b(3), for unsuitability and his service was characterized as under honorable conditions.  He completed 2 years, 6 months, and 15 days of net active service.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel.  Chapter 13, in effect at the time, provided for separation due to inaptitude, personality disorder, apathy, and homosexuality.  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.

11.  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 contends his general discharge under honorable conditions should be upgraded to an honorable discharge because he has been a good citizen since his discharge and an upgrade of his discharge would allow him to file for additional veterans' benefits.

2.  The evidence of record shows the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 13-5b(3), for unsuitability was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reasons were appropriate and equitable.

3.  Records show the applicant received NJP on three separate occasions.  The last Article 15 was imposed against the applicant based upon his possession of marijuana.  In addition, his commander indicated the applicant had an inappropriate interest in military service.  Thus, the applicant's character of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

4.  The applicant's contention that he has been a good citizen since he was discharged is not in question.  However, it is not sufficiently mitigating to warrant relief.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

5.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making the applicant eligible for veterans'/medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

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 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)                                         AR20100026057



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ABCMR Record of Proceedings (cont)                                         AR20100026057



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