IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110004940 


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 Discharge (GD) Certificate be changed to an Honorable Discharge (HD) Certificate.

2.  He states "it's been more than the 16 year limitation."  He needs the HD Certificate so he can file for all benefits "big or small" and receive Department of Veterans Affairs benefits.

3.  He provides his GD Certificate.

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 14 November 1974.  

3.  On 14 August 1975, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being disrespectful in language and deportment toward a superior noncommissioned officer (NCO) and willfully disobeying a lawful order from a superior NCO.  

4.  On 14 January 1976, he received NJP under the provisions of Article 15, UCMJ, for failing to obey a lawful order, behaving with disrespect toward a superior commissioned officer, and possession of marijuana.

5.  On 17 February 1976, his commander notified him of his intent to initiate action to discharge him under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsuitability because of apathy, defective attitudes, or inability to expend effort constructively.  

6.  He acknowledged he had been advised by counsel of the basis for the contemplated action to accomplish his separation for unsuitability.  He waived his right to consideration of his case by a board of officers, to personal appearance before a board of officers, to submit statements in his own behalf, and to representation by counsel.  He indicated he understood he could expect to encounter substantial prejudice in civilian life in the event a GD was issued to him.

7.  Also on 17 February 1976, his commander submitted a recommendation for elimination for unsuitability.  His commander stated he "required constant supervision because of his attitude," had "consistently displayed a hostile attitude toward authority and toward military ruling," and "had several counseling sessions because of his hostile attitude."  His commander further stated correction and counseling had not resulted in a satisfactory adjustment.

8.  On 18 May 1976, the separation authority approved the recommendation to discharge him and directed he receive a GD.  On 7 June 1976, he was discharged accordingly.  He completed 1 year, 6 months, and 24 days of total active service.

9.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 13 of the regulation in effect at the time provided for separation for unsuitability due to apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  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.

	b.  Paragraph 3-7a provides that an HD 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.  It appears the applicant believes a discharge may be considered for upgrade after 16 years.  In fact, the ADRB may consider a discharge for upgrade within 15 years of the effective date.  After 15 years, cases are referred to the ABCMR.  Submitting an application does not guarantee approval; each application is considered on its own merits.  The applicant should note that the Army does not have, nor has it ever had, a policy to upgrade a discharge based solely on the passage of time.  

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for benefits.

3.  The applicant's separation for unsuitability was proper and equitable and in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  Based on his record of indiscipline, which includes two NJP's for five violations of the UCMJ, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service insufficiently meritorious to warrant an HD.  Therefore, he is not entitled to an HD Certificate.







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)                                         AR20110004940





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110004940



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1