IN THE CASE OF:
BOARD DATE: 5 April 2012
DOCKET NUMBER: AR20110019579
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 (GD) be upgraded to a fully honorable discharge (HD).
2. The applicant states he was punished based on a misunderstanding with a noncommissioned officer who had a hearing problem.
3. The applicant provides his DD Form 214 (Report of Separation 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was an Army National Guard (ARNG) Soldier ordered to active duty for failure to attend drills. With prior active duty for training, he served in the Active Army from 3 November 1975 through 23 July 1976.
3. The applicant's records contain two records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for:
* being disrespectful towards a sergeant first class on 9 February 1976 and for willfully disobeying a lawful order from a sergeant on 11 February 1976
* willfully disobeying a lawful order from a sergeant on 15 July 1976 and for failing to go to his appointed place of duty at the time prescribed on 16 July 1976
4. The applicant's company commander initiated administrative separation action against him under the provisions of Army Regulation 635-200, paragraph 5-37, for failure to demonstrate potential or follow orders. The applicant acknowledged notification in an undated endorsement.
5. On 20 July 1976, the approving authority approved the applicant's discharge action and directed that he be issued a GD. On 23 July 1976, he was so discharged.
6. There is no record the applicant petitioned the Army Discharge Review Board seeking a discharge upgrade during that board's 15-year statute of limitations.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-3 of the regulation then in effect established the Expeditious Discharge Program. This program provided that Soldiers who have demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army, because of the existence of one or more of the following conditions, could be discharged:
* poor attitude
* lack of motivation
* lack of self discipline
* inability to adapt socially or emotionally
* failure to demonstrate promotion potential
8. Paragraph 3-7a of Army Regulation 635-200 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 members
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 request to upgrade his GD to an HD was carefully considered and determined to lack merit.
2. The applicant was an ARNG Soldier. He failed to perform his ARNG duties and he was ordered to active duty. While on active duty he demonstrated the same poor attitude and lack of motivation. Additionally, he received two NJPs.
3. The applicants discharge proceedings were justified and were conducted in accordance with laws and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.
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) AR20110019579
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ABCMR Record of Proceedings (cont) AR20110019579
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