IN THE CASE OF:	  

		BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110019714 


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 would like for his family records to reflect honorable service and he does not understand why he received a under honorable conditions discharge. 

3.  The applicant provides no additional evidence in support of his 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 Regular Army on 14 September 1973 for a period of 2 years.  He was trained in and awarded the military occupational specialty 16H (Air Defense Artillery Operations and Intelligence Assistant).  The highest grade he attained was private/pay grade
E-2.  

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 three separate occasions for the offenses indicated:

	a.  on 19 February 1974, for being absent from his unit (AWOL) from 19 February 1974 to 20 February 1974.

   b.  on 15 August 1974, for possession of marijuana,

	c.  on 26 August 1974, for being incapacitated for the performance of his duty and possession of marijuana.

4.  On 5 December 1974, court-martial charges were preferred against the applicant for one specification of being AWOL from 2 December 1974 to 4 December 1974, and one specification of breaking restriction on 3 December 1974.  

5.  In December 1974, 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 
unfitness.

6.  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. 

7.  The unit commander recommended that the applicant be discharge for unsuitability under the provisions of AR 635-200, chapter 13.  The unit commander stated his reason for taking the action was the applicant's record of being involved with drugs.  He further stated that the applicant’s performance was characterized by behavior rendering him repeatedly subject to punitive actions. 
8.  On 26 December 1974, 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 (Report of Separation from Active Duty) he was issued shows he was discharged on 30 December 1974 with  a general discharge in accordance with the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability-character or behavior disorder.  He had served 1 year, 3 months, and 16 days of total active service.

9.  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

10.  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 character and behavior disorder, when such disorder recalcitrant to attempt at rehabilitation and interfere with the individual’s ability to adequately perform their duties.  

11.  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.  The evidence of record confirms the applicant's unit commander notified him of the contemplated separation action and that he consulted with legal counsel.  It further shows that the applicant was advised of the basis for the contemplated separation action and its possible effects.



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 three 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)                                         AR20110019714





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ABCMR Record of Proceedings (cont)                                         AR20110019714



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