IN THE CASE OF:	  

		BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120003940 


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 honorable.

2.  The applicant states:

* he was told his discharge would automatically be changed to honorable after 2 years
* he wants his discharge upgraded so he can apply for disability benefits

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* character-reference letter

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 13 August 1981 for a period of 3 years.  He completed training and was awarded military occupational specialty 11C (indirect fire infantryman).

3.  Between March 1982 and May 1982, nonjudicial punishment (NJP) was imposed against the applicant on four occasions for:

* failing to repair (five specifications)
* breaking restriction

4.  On 30 June 1982, the applicant was notified of his pending separation for unsuitability under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 13-4c(2), due to apathy, defective attitude, or inability to expend effort constructively.

5.  On 14 July 1982, he consulted with counsel, waived consideration of his case by a board of officers, and elected to submit a statement in his own behalf; however, his statement is not available.

6.  On 16 July 1982, the unit commander initiated action to separate him under the provisions of Army Regulation 635-200 for unsuitability due to apathy, defective attitude, or inability to expend effort constructively.  The commander cited:

* the applicant had developed a pattern of being late and his duty performance had been affected by his tardiness
* he had been counseled on numerous occasions by his chain of command but he had shown no desire to improve
* he had received NJP three times since his assignment to that unit

7.  On 3 August 1982, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

8.  He was discharged under honorable conditions on 19 August 1982 under the provisions of Army Regulation 635-200, paragraph 13-4c(2), for unsuitability due to apathy, defective attitude, or inability to expend effort constructively.  He completed 1 year and 7 days of total active service.



9.  He provided a character-reference letter from his mother who attests:

* he quit college in 1981 to join the Army for a career
* in basic training he was a squad leader, a platoon leader, and an acting drill corporal and he received an award for his accomplishments
* his drinking problem began when he was sent to Germany
* he was discharged without any support program
* he needs an honorable discharge in order to apply for disability to receive help for his problems

10.  There is no evidence of record which shows he was diagnosed with alcohol abuse or dependency prior to his discharge.

11.  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.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability.  Paragraph 
13-4c provided for discharge due to unsuitability because of apathy, defective attitude, or inability to expend effort constructively.  The regulation stated that when separation for unsuitability was warranted, an honorable or general discharge was issued as warranted by the member's military record.

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.

14.  The U.S. Army does not now have nor has it ever had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge, or both, was improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was told his discharge would be automatically changed to honorable after 2 years.  However, a discharge upgrade is not automatic.

2.  He contends he wants his discharge upgraded so he can apply for disability (apparently he means Department of Veterans Affairs benefits).  However, a discharge is not changed for the purpose of rendering eligibility for benefits.

3.  The character-reference letter submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

4.  The applicant's mother contends his drinking problem began in Germany and he was discharged without any support program.  However, there is no evidence of record which shows the applicant was diagnosed with alcohol abuse or dependency prior to his discharge.  Nevertheless, he could have taken steps to refer himself for alcohol abuse treatment while in the Army.

5.  His administrative separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

6.  Since his record of service included four NJP's, his 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 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)                                         AR20120003940



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ABCMR Record of Proceedings (cont)                                         AR20120003940



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