IN THE CASE OF:	  

		BOARD DATE:  4 October 2012

		DOCKET NUMBER:  AR20120005924 


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:

	a.  upgrade of his general discharge to honorable; and

   b.  correction of his DD Form 214 (Report of Separation from Active Duty) to show 5 days of inactive service instead of 14 days.

2.  The applicant states:

* his prior inactive service was 5 days, not 14 days
* he was approved for 5 days 

3.  The applicant provides a 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 U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 13 January 1976 for a period of 6 years.  On 26 January 1976, he was discharged from the USAR DEP and he enlisted in the Regular Army (RA) on 27 January 1976 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 31M (multichannel communications equipment operator).

3.  Between 27 October 1977 and 16 March 1978, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for:

* failing to go at the time prescribed to his appointed place of duty and using provoking words
* failing to go at the time prescribed to his appointed place of duty (two specifications)
* being absent without leave (AWOL) from 16 February 1978 to 21 February 1978
* being AWOL from 1 March 1978 to 6 March 1978

4.  On 7 April 1978, he was notified by his commander of the contemplated separation action for failing to maintain acceptable standards for retention under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program).  The unit commander recommended separation with a general discharge and cited:

* the applicant's lack of motivation and self-discipline
* his inability to accept instructions and directions
* his clearly substandard performance and repeated AWOLs

5.  He acknowledged notification of his proposed discharge, voluntarily consented to the separation, and elected not to make a statement in his own behalf.  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.

6.  On 10 April 1978, the separation authority approved the recommendation for separation and directed the applicant be furnished a General Discharge Certificate.


7.  He was accordingly discharged on 14 April 1978 under the provisions of Army Regulation 635-200, paragraph 5-37, for failing to maintain acceptable standards for retention.  He completed 2 years, 2 months, and 8 days of total active service with 10 days of time lost.

8.  Item 18d of his DD Form 214 shows he had 14 days of prior inactive service.

9.  He provided a character reference letter from a reverend who attests:

* the applicant is honest, kind, and generous
* he volunteered at the church before the reverend's retirement
* he was patient, calm, and respectful

10.  There is no evidence in the available records that shows 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 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

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

2.  The applicant's record of service included four NJPs.  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.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he failed to do so.

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  He contends his prior inactive service was 5 days, not 14 days.  However, evidence shows he enlisted in the USAR DEP on 13 January 1976 and 14 days later, on 27 January 1976, he enlisted in the RA.  Therefore, item 18d of his
DD Form 214 properly reflects his 14 days of prior inactive service (his USAR service).

6.  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 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)                                         AR20120005924



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ABCMR Record of Proceedings (cont)                                         AR20120005924



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