IN THE CASE OF:	  

		BOARD DATE:  18 October 2012

		DOCKET NUMBER:  AR20120006360


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

2.  The applicant states it has been 38 years since he received the GD that he now wants upgraded to an HD.

3.  The applicant provides no additional 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 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 initially enlisted in the Regular Army on 30 March 1970 and served the following two periods of honorable service prior to the period in question:

* 30 March 1970 - 11 February 1971
* 12 February - 20 April 1971

3.  On 30 April 1971, the applicant reenlisted in the RA.  He held and served in military occupational specialty 12C (Bridge Specialist).

4.  On 22 March 1972, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order.

5.  On 16 January 1973, a special court-martial (SPCM) convicted the applicant of being absent without leave (AWOL) from on or about 29 October – 18 November 1972 and from on or about 21 - 23 November 1972.  He was sentenced to 89 days confinement at hard labor and forfeiture of $100.00 a month for 4 months.

6.  His DA Form 20 (Enlisted Qualification Record) shows he accrued time lost due to being AWOL or imprisoned during the following periods:

* 19 - 21 July 1970 – AWOL (3 days)
* 30 August – 17 September 1970 – AWOL (19 days)
* 19 October – 17 November 1972 – AWOL (30 days)
* 21 -22 November 1972 – AWOL (2 days)
* 17 January – 29 March 1973 – imprisonment (73 days)

7.  On an unknown date, the unit commander notified the applicant he was recommending the applicant for discharge under the provisions of chapter 13, Army Regulation 635-200, by reason of unsuitability (apathy).  He cited the applicant's continued apathy, disinterest and inability to cope with the continued stress of military life, as well as his extensive family problems as the basis for the separation action.

8.  On 13 March 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, of the rights available to him and of the effect of a waiver of those rights.  Subsequent to receiving legal counsel, the applicant completed a statement in which he waived his right to consideration of his case by a board of officers, a personal appearance before a board of officers, and representation by counsel.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he was issued a GD.

9.  On 13 March 1973, the separation authority directed the applicant’s discharge under the provisions of Army Regulation 635-200, by reason of unsuitability with a GD.  On 21 March 1973, the applicant was discharged accordingly.

10.  The DD Form 214 he was issued shows he completed a total of 2 years, 5 months, and 11 days of creditable active military service and he accrued 
127 days of time lost.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.

   a.  Chapter 13 of the version of the regulation in effect at the time of the applicant’s discharge applied to separation for unfitness and unsuitability.  It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted an HD or a GD was issued as determined by the separation authority based upon the individual’s entire record.

   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 contends his GD should be upgraded to an HD because it has been 38 years since he received it.  However, this claim is insufficient to mitigate the requested relief.

2.  The available evidence shows the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record reveals a disciplinary history that includes his acceptance of NJP, an SPCM conviction, and his accrual of 127 days of lost time due to being AWOL and imprisoned.  This record of misconduct clearly diminished the overall quality of his service below that warranting the issuance of an HD.  Therefore, it would not be appropriate to upgrade his discharge at this late date.

4.  In view of the above, the applicant's request should be denied.

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)                                         AR20110012717



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ABCMR Record of Proceedings (cont)                                         AR20120006360



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