IN THE CASE OF:

		BOARD DATE:	14 August 2012

		DOCKET NUMBER:  AR20120003306 


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states that, after he was in an accident in an Army Jeep, he suffered debilitating headaches.  He went for treatment and the next thing he knew, he was discharged.

3.  The applicant provides a copy of a record of medical consultation, dated
10 December 1990 and 29 January 1991.

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 4 June 1976 and he held military occupational specialty 11D (Armor Intelligence Specialist).  He was assigned to Fort Campbell, KY, and he attained the rank/grade of private/E-2.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on 29 November 1976, for being absent from his place of duty.

4.  A 28 April 1977 memorandum from the chaplain related that the applicant was having marriage difficulties that affected his military performance.  Because of the difficulties, the applicant felt he needed to get out of the Army.  The applicant further related that if he was not discharged with a Chapter 5, he would receive a "Chapter 13 later."

5.  On 28 April 1977, the applicant's immediate commander notified him that he intended to recommend his discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37, by reason of his expressing negative attitudes, displaying a lack of potential for advanced responsibilities, and failing to make the emotional adjustments needed so that his marital problems would not preclude effective duty performance.

6.  The applicant acknowledged notification of his proposed discharge.  He voluntarily consented to the discharge and elected not to make a statement on his behalf.  The applicant further acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge.  

7.  His immediate commander recommended the separation action and noted that the applicant had been counseled on four occasions between October 1976 and April 1977.  He recommended issuance of a General Discharge Certificate.  

8.  The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-37, by reason of failure to meet acceptable standards for continued military service.  He directed the applicant be furnished a General Discharge Certificate.  On 20 May 1977, the applicant was discharged accordingly.  His DD Form 214 shows he had completed 11 months and 17 days of active military service.

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


10.  His medical records are not available.

11.  The applicant provided a copy of a record of medical consultation, dated
10 December 1990 and 29 January 1991, relating he was involved in a Jeep accident at Fort Knox, KY, in 1977 which resulted in a blow to the head by a tree limb.  He reported persistent headaches and memory problems since that accident.  He was also involved in a motorcycle accident in 1979 which resulted in a concussion.  He was in a coma for the first 7 days of his 17 day hospitalization from that accident.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37 of the regulation, in effect at the time, provided for the discharge of enlisted personnel who had completed at least 6 months, but less than 36 months of active duty and who had 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:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either a general or honorable discharge.  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.

13.  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 contends that his discharge should be upgraded because he suffered debilitating headaches.  He went for treatment and the next thing he knew, he was discharged.

2.  There is nothing in the available records about either an accident or headaches.

3.  The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards.  He accepted NJP and was counseled on several occasions.  Accordingly, his immediate commander initiated separation action against him and recommended a general discharge based on his record of misconduct and non-performance.  

4.  His 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 reason for separation were appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.

5.  He has not shown error, injustice, or inequity for the relief he requests.  Therefore, 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 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)                                         AR20110023350



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ABCMR Record of Proceedings (cont)                                         AR20120003306



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