IN THE CASE OF:	  

		BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130001346 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states when he was discharged from the Army he thinks he was told that after 2 years his discharge would change to honorable if he did not get into any trouble.  He did not know he had to submit a request in order for his discharge to be upgraded.

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 enlisted in the Regular Army on 27 September 1977 and he held military occupational specialty 36K (Tactical Wire Operations Specialist).  On 3 March 1978, he was assigned to the 2nd Brigade, 82nd Airborne Division, Fort Bragg, NC.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 29 June 1978 for wrongfully possessing marijuana on 1 June 1978
* 7 July 1978 for disobeying a lawful order by a commissioned officer on
7 July 1978

4.  On 2 August 1978, his immediate commander notified him that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 for unsuitability.  The commander cited the specific reasons were his apathetical approach, defective attitude, and his inability to expend time constructively toward his military duties.

5.  On 2 August 1978, he acknowledged notification of the proposed discharge action.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights available to him.  He further acknowledged he understood if he were issued an undesirable discharge he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.  He waived consideration to have his case heard by a board of officers and declined to submit a statement in his own behalf.

6.  The separation authority subsequently approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, for unsuitability with the issuance of a General Discharge Certificate.  On 22 August 1978, he was discharged accordingly.

7.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 13-4c, with an under honorable conditions character of service and issuance of a DD Form 257A (General Discharge Certificate).  He completed 10 months and 26 days of total net active service.

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


9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  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 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 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 he received on two occasions for wrongfully possessing marijuana and disobeying a lawful order.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation 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 therefore appropriate considering all the facts of the case.

3.  Notwithstanding his contention that he thinks he was told his discharge would be automatically upgraded after 2 years, the Army has never had a policy for automatically upgrading discharges.  In addition, the evidence of record does not show he was ever briefed that his discharge could be upgraded to an honorable discharge after 2 years without any incidents.

4.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.


5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's reque669025sted 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)                                         AR20130001346



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ABCMR Record of Proceedings (cont)                                         AR20130001346



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