IN THE CASE OF:	  

		BOARD DATE:	  13 August 2013

		DOCKET NUMBER:  AR20130001023 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states:  

   a.  He was born into a military family that was stationed in Germany in 1954.  After his mother passed away, his father put him and his siblings up for adoption. Some of the foster homes he lived in were okay but others were not.  He was never taught the sense of family.  He was adopted at age 9 but he was never taught responsibility and didn't know what structure was.  This followed him through school and into the military.
   
   b.  He did a lot of things, including the use of marijuana or whatever was available, to numb the past and the present.  On one occasion he used an unauthorized pass from duty.  At one point, he went on a weekend drunk which resulted in his being absent without leave.  All of this seemed to be the acceptable behavior of most Soldiers the time he was in Korea.  However, he paid the price for his actions.
   
   c.  He requests an upgrade of his discharge to enable him to access the Department of Veterans Affairs (VA) benefits that are offered to all who have served their country.  He has been clean and sober since 1991.  He has been in the same job for nearly 20 years and is married with children and grandchildren.  He loves his country and is proud to be an American.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty), his DA Form 20 (Enlisted Qualification Record), a DA Form 4126 (Bar to Reenlistment Certificate), three DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), a DD Form 4 (Enlistment Contract-Armed Forces of the United States), and a 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's records show he enlisted in the Regular Army on 14 February 1974 and he held military occupational specialty 11B (Light Weapons Infantryman).  He was assigned to the 1st Battalion, 23rd Infantry, 2nd Infantry Division, Korea, on 23 July 1974.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ on:

* 19 October 1974, for possessing marijuana
* 3 March 1975, for wrongfully using, with the intent to deceive, an unauthorized pass
* 9 July 1975, for two specifications of failing to go at the prescribed time to his appointed place of duty 

4.  On 15 July 1975, the applicant's immediate commander recommended a Bar to Reenlistment Certificate be placed against him.  The commander cited the NJP the applicant received, and stated the applicant had consistently maintained a substandard appearance and poor attitude.  He had been counseled numerous times concerning his attitude, his duty performance was substandard, and he should not be allowed to reenlist at that time.  On 6 August 1975, the approving authority approved the Bar to Reenlistment and it was placed in his records.

5.  The complete facts and circumstances surrounding the applicant's discharge processing are not known.  However, his records contain a properly constituted DD Form 214 that shows he was discharged from active duty on 18 September 1998 under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 13-5a, for unfitness - frequent incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions characterization of service.  He completed 1 year, 8 months, and 7 days with 3 days of lost time.

6.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

8.  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.

9.  Army Regulation 635-200, paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP's he received on three different occasions for possessing marijuana, using an unauthorized pass, and failing to go at the time prescribed to his appointed place of duty on two different occasions.  It appears his commander subsequently initiated separation action against him.

2.  His record is void of the specific facts and circumstances surrounding his discharge.  However, in the absence of evidence to the contrary, it is presumed his separation processing 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 reason for separation were appropriate considering all the available facts of the case.  

3.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of making the applicant eligible for VA or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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 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)                                         AR20130001023





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ABCMR Record of Proceedings (cont)                                         AR20130001023



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