BOARD DATE:	  10 November 2011

		DOCKET NUMBER:  AR20110010830 


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, in effect, his narrative reason for separation be changed to show he was discharged for hardship reasons.

2.  The applicant states:

* he should have received a hardship discharge
* his mother was very ill and had a short time to live
* he had to go home to take care of family matters 
* he raised his sisters and brothers while working two and three jobs
* had the life crisis not happened he would still be in the Army
* he has tried several times to ask for help from the Department of Veterans Affairs (DVA)
* he desires benefits afforded other veterans

3.  The applicant provides:

* three letters from his Senator
* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* self-authored statements
* his mother's death certificate
* two copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty)



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 10 November 1981.  He completed training and was awarded military occupational specialty 19E (Armor Crewman).  The highest rank/grade he attained while on active duty was private/E-2.

3.  The applicant's DD Form 1966/6 (Record of Military Processing – Armed Forces of the United States) shows the applicant signed a statement indicating he had experimented with marijuana three times prior to his enlistment.

4.  The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for the following offenses:

* possessing 1.12 grams, more or less of marijuana on a military installation 
*  failing to go to at the time prescribed to his appointed place of duty 

5.  On 14 July 1982, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), chapter 5, for:

* receiving two Articles 15 within four months of assignment to the unit
* constantly being counseled regarding his tardiness for formation, guard duty, and extra duty
* lacking the maturity necessary to be a good Soldier
* having a negative attitude that created a bad atmosphere in his platoon and company  

6.  The applicant acknowledged receipt of the notification and signed a statement indicating he understood his service would be characterized as under honorable conditions, he could expect to encounter substantial prejudice in civilian life, he was provided the opportunity to consult with an officer of the Judge Advocate General's Corps, there was no automatic upgrading nor review by any government agency,  and that he must apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for a review of his discharge.

7.  The applicant's DA Form 3822-R (Report of Mental Status Evaluation), dated 19 July 1982, shows no mental illnesses and that he was able to distinguish right from wrong and able to adhere to the right.

8.  On 22 July 1982, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 5, and directed the issuance of an under honorable conditions (general) discharge.  On 28 July 1982, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was discharged for failure to maintain acceptable standards for retention.  He completed 8 month and 19 days of creditable active service.

9.  The record is void of any evidence showing the applicant's mother was ill or his family needed assistance.  Additionally, the record is void of any evidence the applicant sought assistance from the Army with his family issues.

10.  On 28 November 1986, the Army Discharge Review Board informed the applicant that the Board had reviewed his case and determined he was properly and equitably discharged and that his request for an upgrade of his discharge was denied. 

11.  The applicant provides letters from his Senator advising him on where to submit his requests pertaining to his discharge.  The applicant also provides statements regarding his family issues at the time of his discharge and a copy of his mother's death certificate. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provides that members who have completed at least 6 months but not more than 36 months of continuous active service on their first enlistment and who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential may be discharged.  It provides for the expeditious elimination of substandard, nonproductive soldiers before board or punitive action becomes necessary.  No member will be discharged under this program unless he/she voluntarily consents to the proposed discharge.  Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment with due consideration for the member’s age, length of service, grade and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.  No member will be given a general discharge by the discharge authority unless it was recommended by the commander initiating the recommendation for discharge.  In cases in which the discharge authority disagrees with the recommendation for an honorable discharge, the case will be returned to the initiating commander with comment to that effect.  The initiating commander may then either initiate new proceedings or take other appropriate action.

13.  Chapter 6 of Army Regulation 635-200 governs separation because of dependency or hardship.  Paragraph 6-1 of Chapter 6 states:  “Separation under this chapter is for the convenience of the Government.”  Paragraph 6-3 states that Soldiers of the active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship.  The regulation provides that hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.  Under this provision for hardship discharge, parenthood of married service women and sole parenthood are the two conditions under which separation may be granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his narrative reason for separation should be changed to show he was discharged for hardship reasons was carefully considered; however, there is insufficient evidence to support this request.

2.  There is no evidence which shows the applicant's command considered hardship as a basis for his discharge or he requested discharge for hardship reasons.  The facts show his discharge was based on his indiscipline. 

3.  The evidence of record confirms the applicant's commander notified him of the intent to separate him with an under honorable conditions (general) discharge.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant's record of service shows he received an Article 15 on two occasions, numerous counselings, and lacked the maturity for retention in the Army.  Based on this record of indiscipline, the applicant's narrative reason for separation is appropriate.  
5.  Based on the foregoing, there is insufficient evidence to grant the requested relief. 

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other 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 veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for veteran's benefits should be addressed to the DVA.

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)                                         AR20110010830



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ABCMR Record of Proceedings (cont)                                         AR20110010830



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