IN THE CASE OF:	  

		BOARD DATE:	  1 August 2013

		DOCKET NUMBER:  AR20120021733 


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 be upgraded to an honorable discharge.

2.  The applicant states, in effect, his discharge should be upgraded in order to be eligible for benefits through the Department of Veterans Affairs.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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.  On 9 August 1978, he enlisted in the Regular Army.  He held and served in military occupational specialty 36C (Wire System Installer).
3.  He accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions for:

* failing to go at the time prescribed to his appointed place of duty (twice)
* failing to obey a lawful order from a senior noncommissioned officer

4.  On 25 June 1979, the unit commander notified the applicant that he was recommending the applicant for discharge under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of unsuitability (inaptitude, apathy).  He noted the applicant had received two Article 15s within the last 30 days and he still continued to miss formation.  He was unwilling follow simple orders and had been released from the central confinement facility for disobeying a lawful order.

5.  On 25 June 1979, 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 requested 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 that he could expect to encounter substantial prejudice in civilian life if he was issued a general discharge.  Further, he understood that as the result of issuance of an undesirable discharge under conditions other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

6.  On 6 August 1979, he waived his rights to have his case considered by a board of officers, a personal appearance before a board of officers, and representation by counsel based on the issuance of a general discharge.

7.  On an unknown date, the separation authority directed the applicant’s discharge under the provisions of Army Regulation 635-200, by reason of unsuitability with a general discharge.  On 28 August 1979, the applicant was discharged accordingly.

8.  His DD Form 214 shows he completed a total of 1 year and 20 days of creditable active military service and he accrued 23 days of time lost (excess leave).

9.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 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 honorable or a general discharge was issued as determined by the separation authority based upon the individual’s entire record.

   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 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.

2.  The applicant's record reveals a disciplinary history that includes his acceptance of NJP on three separate occasions, to include failing to obey a lawful order.  This record of misconduct clearly diminished the overall quality of his service below that warranting the issuance of an honorable discharge.  Therefore, it would not be appropriate to upgrade his discharge.

3.  In view of the above, his 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)                                         AR20120021733





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ABCMR Record of Proceedings (cont)                                         AR20120021733



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