IN THE CASE OF:	  

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110013127 


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 his general discharge be upgraded to honorable.

2.  He states that under the current Uniform Code of Military Justice (UCMJ) and regulations he would have been granted a transfer and provided counseling, etc. He had requested a transfer many times before the incident with Sergeant (SGT) OXXX and SGT OXXX denied his requests.  Had he been transferred the incident would not have happened.  

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.  The applicant’s military record shows he enlisted in the Regular Army, in pay grade E-1, on 8 August 1974, for 3 years.  He completed training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).  He was advanced to pay grade E-2 on 8 December 1974.

3.  On 23 August 1974, he accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for disobeying a lawful order not to bring alcoholic beverages into the barracks on 22 August 1974.

4.  He was reported absent without leave (AWOL) on 14 April 1975.  He was returned to military control on 12 June 1975 from civilian confinement.

5.  He again accepted NJP under Article 15, UCMJ, on:

* 18 June 1975, for absenting himself from his unit from 18 April to 21 April 1975
* 2 July 1975, for failing to go to his appointed place of duty on 27 June 1975

6.  He was reduced to pay grade E-1 on 18 July 1975.

7.  On 25 July 1975, the applicant’s company commander initiated action to discharge the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 5-37, with a general discharge.  The company commander stated the reasons for the proposed action were the applicant’s receipt of an Article 15 on 23 August 1974 for drinking alcoholic beverages during duty, multiple counseling regarding the applicant’s substandard performance and unacceptable appearance, not being on time and in the proper uniform, receipt of an Article 15 for not being at his appointed place of duty, and missing extra duty.

8.  The company commander also stated that despite all the efforts on the part of the chain of command, the poor attitude and substandard performance the applicant had displayed still continued, and there had been no signs of improvement or effort on the applicant’s part to rectify the situation.

9.  On 25 July 1975, after consulting with counsel, the applicant acknowledged receipt of the purposed discharge action and elected not to submit a statement in his own behalf.  He acknowledged that if he was furnished a general discharge, under honorable conditions, he could expect to encounter substantial prejudice in civilian life.


10.  On 28 July 1975, the separation authority approved the applicant’s discharge and ordered it duly executed.

11.  He was discharged in pay grade E-1 on 11 August 1975, under the provisions of Army Regulation 635-200, paragraph 5-37, for failure to meet acceptable standard for continued military service, with a general discharge.  He was credited with completing 11 months and 12 days of net active service and had 23 days of time lost.

12.  In a letter, dated 11 August 1975, the Army Discharge Review Board (ADRB) advised the applicant, in effect, he must submit a request for a review of his discharge on a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States) within 15 years after the date of discharge or dismissal.  The applicant acknowledged receipt of that letter. 

13.  There is no evidence that he applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

14.  There is no evidence the applicant requested assistance through his chain of command for any problems which prevented him from completing his period of service.  

15.  Army Regulation 635-200, chapter 5, in effect at the time, set forth the basic authority for the separation of enlisted personnel for the convenience of the government.  Separation under this chapter included provisions for discharging Soldiers for a variety of reasons.  Paragraph 5-37 stated, in pertinent part, that those personnel whose performance of duty, acceptability for the service, and potential for continued effective service, which fell below the standards required, would be discharged.  It also stated that discharge under this paragraph was limited to personnel who failed to be advanced to the pay grade of E-2 after 4 months of active service and 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 criteria for promotion to the pay grade of E-3, without waiver.  The separation authority could direct a general discharge or, when other circumstances clearly warranted, an honorable discharge.

16.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by 
law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows in July 1975 the applicant’s company commander initiated action to discharge the applicant due to the applicant’s receipt of Article 15s for drinking alcoholic beverages during duty and not being at his appointed place of duty, multiple counseling regarding the applicant’s substandard performance and unacceptable appearance, not being on time and in the proper uniform, and missing extra duty.

2.  After consulting with counsel, he acknowledged he understood the reasons for the proposed action and the issuance of a general discharge.  He was discharged accordingly on 11 August 1975.

3.  By his conduct and actions, it appears he failed to assimilate into the Army environment and develop into a satisfactory Soldier and his company commander had no option but to recommend his discharge.  His discharge was approved and direction was given that his personnel records would be annotated to reflect he was discharged for failure to meet acceptable standards for continued military service.

4.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.   His service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

5.  The evidence of record confirms his discharge processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons therefore were appropriate, considering all the facts of the case.  

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)                                         AR20110013127



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ABCMR Record of Proceedings (cont)                                         AR20110013127


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