IN THE CASE OF:
BOARD DATE: 24 July 2012
DOCKET NUMBER: AR20120001256
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. The applicant states he was:
* not a dishonorable service member at anytime during his service
* separated in the rank of specialist four with no disciplinary action
3. The applicant provides no documentary 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 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 enlisted in the Regular Army on 18 September 1972 for a period of 3 years. He completed his training and was awarded military occupational specialty 51L (Refrigeration Equipment Repairer). He attained the rank of specialist four on 21 March 1974.
3. On 25 April 1974, nonjudicial punishment (NJP) was imposed against the applicant for failing to go to his appointed place of duty.
4. He was counseled on three occasions for being absent from morning formations on 21 March and 25 March 1975.
5. On 28 April 1975, NJP was imposed against him for being absent from his appointed place of duty for approximately 7 hours.
6. On 6 June 1975, the unit commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 13-5b(3), for unsuitability apathy, defective attitude, or inability to expend effort constructively.
7. On 10 June 1975, he consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and elected not to submit a statement in his own behalf. He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a discharge under conditions other than honorable was issued to him.
8. On 11 June 1975, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.
9. He was discharged in the rank of specialist four on 20 June 1975 with a general discharge under the provisions of Army Regulation 635-200, chapter 13, for unsuitability, due to apathy, defective attitude, or inability to expend effort constructively. He completed 2 years, 9 months, and 3 days of total active service.
10. There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
11. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability. Paragraph
13-5b(3), provided for discharge due to unsuitability apathy, defective attitude, or inability to expend effort constructively. The regulation stated when separation for unsuitability was warranted an honorable or general discharge was issued as appropriate by the member's military record.
12. 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 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. Although the applicant contends he was separated due to no disciplinary action, the available evidence shows he was counseled on three occasions for failure to be at his appointed place of duty and he received two NJPs.
2. His administrative separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.
3. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
4. Since his record of service included two NJPs, 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.
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) AR20120001256
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ABCMR Record of Proceedings (cont) AR20120001256
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