IN THE CASE OF:	  

		BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20110022984 


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:

	a.  his general discharge be upgraded to honorable; 

	b.  his rank be corrected on his DD Form 214 (Report of Separation from Active Duty);

	c   his military occupational specialty (MOS) be corrected on his 
DD Form 214; and   

	d.  entries on his DA Form 2-1 (Personnel Qualification Record) be amended. 

2.  The applicant states, in effect:

* his discharge was upgraded to honorable
* Department of Veterans Affairs (VA) documentation shows his discharge was honorable
* his DA Form 2-1 shows MOS 76Y3O (armor/unit supply specialist) but his DD Form 214 shows MOS 76Y1O
* item 35 (Record of Assignments) of his DA Form 2-1 shows his principal duty was "Armorer E-4" but item 18 (Appointments and Reductions) of his DA Form 2-1 shows private first class
* various entries on his DA Form 2-1 are incorrect



3.  The applicant provides:

* DD Form 214
* DA Form 2-1
* VA documentation and medical records

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 16 January 1975 for a period of 3 years.  He completed his training and was awarded MOS 76Y.  He attained the rank of private first class on 9 December 1975. 

3.  Between 3 April 1975 and 21 July 1976, nonjudicial punishment (NJP) was imposed against the applicant on four occasions for:

* communicating a threat to kill
* possessing drug paraphernalia
* dereliction in the performance of his duties
* failing to go at the time prescribed to his appointed place of duty
* being drunk on duty
* being disrespectful  

4.  On 2 November 1976, NJP was imposed against the applicant for failing to obey a lawful order.  His punishment included a reduction to E-1.  

5.  On 8 May 1977, the applicant was notified of his pending separation for failure to maintain acceptable standards for retention under the Expeditious Discharge Program under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-37.  The unit commander cited the applicant's:

* frequent actions of misconduct
* lack of response to counseling
* poor attitude

6.  He acknowledged notification of his proposed discharge, voluntarily consented to the separation, and elected to make a statement on his behalf but his statement is not available.  He also acknowledged he might expect to encounter substantial prejudice in civilian life if issued a general discharge and he had been provided an opportunity to consult with counsel.

7.  On 31 May 1977, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

8.  He was accordingly discharged on 27 May 1977 under the provisions of Army Regulation 635-200, paragraph 5-37, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  He completed a total of 2 years, 4 months, and 12 days of total active service.

9.  His DD Form 214 shows his:

* grade as PV2 (private 2)
* pay grade as E2
* primary MOS as 76Y1O

10.  There is no evidence which shows he was appointed to pay grade E-4 prior to his discharge.

11.  His DA Form 2-1, prepared on 25 March 1977, shows his primary MOS is 76Y1O.

12.  There is no evidence in the available records that shows the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, in effect at the time, provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would 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 could be discharged.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  Issuance of an Honorable Discharge Certificate was 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 was not sufficiently meritorious to warrant an honorable discharge.

14.  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.

15.  Army Regulation 611-201 (Enlisted Military Occupational Specialties) states the skill level denotes level of qualification in the total MOS.  Levels of qualification are identified by the numbers "0" through "5" in the fourth position of the MOS code.  Skill level identifies skills, proficiency, or ability typically required for successful performance at the grade with which the skill level is associated.  Skill level 1 identifies positions in E-3 and E-4.  Skill level 3 identifies positions in E-6 (staff sergeant). 

16.  Army Regulation 600-8-104 prescribes instructions for preparing and maintaining for the DA Forms 2-1 and 2A.  In pertinent part, it states that the DA Forms 2-1 and 2A are the basic record for enlisted personnel and will be prepared and maintained for Active Army and U.S. Army Reserve enlisted personnel.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge was upgraded to honorable.  However, there is no evidence to support this contention.  There is no evidence which shows he applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

3.  His record of service included five NJP's.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  Although his DA Form 2-1 shows the entry "Armorer E-4" in item 35 of his DA Form 2-1, there are no orders which show he was appointed to E-4 prior to his discharge.  Therefore, there is insufficient evidence on which to amend his rank on his DD Form 214. 

5.  Although his DA Form 2-1 shows his duty MOS was 76Y3O, evidence shows his primary MOS was 76Y1O at the time of his discharge on 27 May 1977 which is properly shown on his DD Form 214.  Therefore, there is insufficient evidence on which to amend his MOS on his DD Form 214.   

6.  His request to amend entries on the DA Form 2-1 was noted.  However, the DA Form 2-1 was prepared and maintained for Active Army and U.S. Army Reserve enlisted personnel.  As he no longer has a military status, there is no basis to recommend that those records be changed.  The DD Form 214 is the document used to record the military history of a separated individual.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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 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)                                         AR20110022984





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ABCMR Record of Proceedings (cont)                                         AR20110022984



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