IN THE CASE OF:	  

		BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110023346 


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) under honorable conditions be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, he served as a citizen Soldier with the New Hampshire Army National Guard for 5 years.  The economy got sluggish and he joined the Army to support his young family.  While stationed at Fort Sill, Oklahoma his wife suffered an injury which required her to be hospitalized for a while and he was forced to care for their two small children on a limited budget.  

3.  The applicant states he was able to relocate his family to Fort Devens, Massachusetts so they could be closer to relatives for support; however, they would not help them.  Before he left for Korea he moved his family to Easthampton, Massachusetts so they could be close to her parents for support; however, when his wife was hospitalized, his mother-in-law would not care for the children.  The applicant further states he should have communicated better with his superiors regarding his situation and he regrets the poor judgment he used in resolving his families problems.  

4.  The applicant concludes he is proud to be an American and asks for forgiveness for the bad decisions he made during a very difficult period in his life. 

5.  The applicant provides a three-page personal statement.


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 25 January 1974.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).  He was advanced to the rank/grade of specialist four/E-4 on 6 December 1974 and this is the highest rank/grade he attained while serving on active duty.

3.  The applicant’s disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on 25 August 1976, for being absent without leave.  It also includes an extensive counseling record for a myriad of conduct and duty performance issues.  The counseling record also shows he continued to request a discharge.  

4.  On 15 October 1976, the unit commander notified the applicant that he intended to initiate action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, by reason of unsuitability.  The unit commander cited the applicant's performance of duty and his personal conduct had deteriorated to the point where it would be futile for any more attempts at rehabilitation as the basis for taking the action.

5.  On 22 October 1976, the separation authority approved the applicant's release from the Army under the provisions of Army Regulation 635-200, paragraph 13-5b(3), and directed that his service be characterized as a under honorable conditions.  

6.  On 17 November 1976, he was discharged accordingly.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 9 months, and 23 days of active military service with 25 days of lost time.

7.  There is no indication the applicant petitioned to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  Chapter 13 provides for separation due to unsatisfactory performance when, in the commander's judgment, the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order, and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

	b.  Paragraph 3-7a 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 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 request for an upgrade of his GD to an HD has been carefully considered.  However, there is insufficient evidence to support granting the requested relief.

2.  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.  

3.  The applicant’s record reveals a disciplinary history that includes acceptance of NJP and several counseling statements for poor conduct.  This record of misconduct clearly diminished the overall quality of his service below that meriting a fully HD.  Therefore, the applicant is not entitled to the 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 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)                                         AR20110023346



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ABCMR Record of Proceedings (cont)                                         AR20110023346



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