IN THE CASE OF:	   

		BOARD DATE:	  13 June 2013

		DOCKET NUMBER:  AR20120020666 


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 a fully honorable discharge.

2.  The applicant states after his general discharge in 1973, he enlisted in the Nevada Army National Guard (NVARNG) in 1978.  He served in the NVARNG for 16 years and received several awards and decorations.  He ultimately retired from the ARNG.  He believes he has redeemed himself and would like his 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show that service. 

3.  The applicant provides:

* 1973 DD Form 214
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* Honorable Discharge Certificate
* DA Form 1059 (Service School Academic Evaluation Report)
* Disposition Form authorizing him award of the Humanitarian Service Medal

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's records show he enlisted in the Regular Army (RA) on 25 October 1967 and he held military occupational specialty (MOS) 36K (Wireman). 

3.  He served in Korea from on or about 17 March 1968 to on or about 16 March 1969.  While in Korea, he was honorably discharged on 27 June 1968 for the purpose of immediate reenlistment.  

4.  He reenlisted in the RA on 28 June 1968 for 6 years.  He subsequently served in Germany from May 1969 to March 1972 and again from March 1973 until his discharge.  

5.  His record reveals a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* on 7 June 1972, for being absent without leave (AWOL) from 23 to 25 May 1972
* on 3 July 1973, for disobeying a lawful order
* on 23 August 1972, for being AWOL from 9 to 15 August 1972

6.  His record contains a list of incidents of a discreditable nature that were not punished under the UCMJ, which included multiple instances of absence from formation, poor attitude, lack of enthusiasm/initiative, substandard performance, lack of desire to continue military service, and overall performance. 

7.  On 25 July 1973, the applicant’s immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of unsuitability.  Specifically, the immediate commander cited the applicant's apathy, defective attitude, and inability to expend effort constructively. 

8.  On 31 July 1973, the applicant acknowledged receipt of the notification of his pending separation action.  He was advised by counsel of the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-200.  He waived consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and he elected not to submit a statement in his own behalf.  He further indicated that he understood that he might expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him.  He also understood that in the event of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and may encounter substantial prejudice in civilian life.

9.  Subsequent to this acknowledgement, the applicant’s immediate commander initiated elimination action against the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsuitability.

10.  On 6 August 1973, the applicant’s intermediate commander recommended approval of the applicant’s discharge.  

11.  On 13 August 1973, the separation authority approved the applicant’s discharge under the provisions of chapter 13 of Army Regulation 635-200 and directed that he be issued a General Discharge Certificate.  Accordingly, the applicant was discharged on 24 August 1973.  

12.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with a character of service as under honorable conditions (general).  This form further shows he completed 5 years, 1 month, and 19 days of creditable active military service and he had 8 days of lost time.

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

14.  He enlisted in the NVARNG on 7 July 1978.  He served through multiple extensions in a variety of stateside assignments and he attained the rank/grade of staff sergeant (SSG)/E-6.  He also completed several training courses and received multiple awards and decorations. 

15.  He was transferred to the Retired Reserve on 1 March 1993 and ultimately placed on the Retired List in his retired rank/grade of SSG/E-6 in January 2010 (60th birthday). 

16.  Army Regulation 635-200, chapter 13, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general under honorable conditions or an honorable discharge was considered appropriate.

17.  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 general discharge should be upgraded to a fully honorable discharge.

2.  The applicant's records reveal a history of misconduct which includes three instances of NJP, two instances of AWOL, and multiple negative counseling for various infractions.  He was provided with multiple counseling and/or opportunities for rehabilitation by various members of his chain of command but failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.

3.  His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.

4.  His subsequent enlistment in and retirement from the ARNG is noted.  However, this does not change the fact that during his RA enlistment from 1968 to 1973, the quality of his service did not meet 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. 

5.  In view of the foregoing evidence, he is not entitled to the 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)                                         AR20120020666





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ABCMR Record of Proceedings (cont)                                         AR20120020666



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