IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110011362 


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 upgrade of his general under honorable conditions discharge to an honorable discharge.

2.  The applicant states he was 17 years old when he entered the Army.  He was young and had no idea on how to deal with adult situations.  He further states that he takes full responsibility for his poor choice of judgment during his enlistment and has since corrected those issues and is currently continuing self improvement.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) in support of this 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's record shows he enlisted in the Army Delayed Entry Program on 4 December 1975 and enlisted in the Regular Army on 9 December 1975 for a period of 4 years.  On the date of the applicant's enlistment he was 17 years and 9 months old.  He was trained in and awarded the military occupational specialty 11B (Infantryman).  The highest grade he attained was private first class/pay grade E-3.  

3.  His service record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions for the offenses indicated:

	a.  on 7 July 1977, for being absent from his unit (AWOL) through on or about 11 July 1977,

	b.   on 11 September 1977, for possession of one ounce or more of marijuana,

	c.  on 4 November 1977, for sleeping on duty,

	d.  on  22 January 1979, for disobeying a lawful order from a superior non-commissioned officer.

4.  On 12 March 1979, the unit commander notified the applicant of his intent to initiate separation action on him under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for 
unsuitability because of apathy, defective attitudes, or inability to expend efforts constructively.  The unit commander stated his reason for taking the action was because the applicant had received four NJP’s which included possession of marijuana, sleeping on guard duty, failure to repair, and disobedience.  The unit commander further stated that the applicant has had extreme difficulty in adjusting to military life and had been counseled extensively by the chain of command but exhibited no progress.

5.  The applicant consulted with legal counsel and he was advised of the basis of the contemplated separation action, its effects, and of the rights available to him. The applicant waived his rights to be considered by an administrative separation 
board, personal appearance before a board of officers consulting counsel, and 
representation by military counsel.  The applicant elected not to make a statement in his own behalf and acknowledged that he understood he could encounter substantial prejudice in civilian life if he received a general discharge. 

6.  On 24 April 1979, the separation authority approved the applicant's discharge for unsuitability and directed that he receive a General Discharge Certificate.  The applicant was discharged accordingly.  The DD Form 214 he was issued shows he was discharged on 16 May 1979 with  a general discharge in accordance with the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability-apathy, defective attitude or inability to expend effort constructively.  He had served 3 years, 5 months, and 4 days of total active service.

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

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  In pertinent part, it provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

9.  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 honorable was carefully considered; however, there is insufficient evidence to support this claim.

2.  Records show the applicant was 17 years and 9 months of age at the time of his enlistment.  Records further show he was 19 years of age at the time of his first offenses and 20 years of age at the time of his last offense.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His disciplinary history includes his acceptance of NJP on four separate occasions.  This conduct does not meet acceptable standards for Army personnel.  Thus, the applicant is not entitled 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)                                         AR20110011362





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ABCMR Record of Proceedings (cont)                                         AR20110011362



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