BOARD DATE:	  5 December 2013

		DOCKET NUMBER:  AR20130005552


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 undesirable discharge to a general discharge.

2.  The applicant states he heard the military was upgrading all discharges to general except for those who received dishonorable discharges.  He states he did not know he had to request an upgrade of his discharge; he thought it was automatic.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty), dated 27 August 1975
* DD Form 215 (Correction to DD Form 214), dated 25 October 2012
* Army Review Boards Agency letter, dated 24 October 2012

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 7 January 1974.  He completed training as an automotive repairman.

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

* 18 June 1974 for being absent from his place of duty on 17 June 1974
* 22 July 1974 for being absent without leave (AWOL) from 8-17 July 1974
* 12 September 1974 for failing to go at the time prescribed to his appointed place of duty on 4 September 1974
* 13 May 1975 for:

* damaging the property of a business establishment on 22 December 1974
* dereliction of duty on 8 April 1975
* being AWOL from 15 April to 5 May 1975

4.  The specific facts and circumstances surrounding the applicant's discharge are not in the available records for the Board's review.  However, his DD Form 214 shows he was discharged on 27 August 1975 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a(1) and assigned a separation program designator (SPD) code of JLB that indicates he was discharged by reason of unfitness - frequent involvement of a discreditable nature with authorities.  He completed 1 year, 6 months, and
22 days of total active service with 29 days of time lost due to being AWOL.

5.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

6.  Army Regulation 635-200 (Personnel Separations), in effect at the time, governed the policies and procedures for the separation of enlisted personnel.

	a.  Paragraph 13-5a provided for separation for unfitness, that included frequent incidents of a discreditable nature.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

	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.

	c.  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 applicant's contentions have been noted and his supporting evidence has been considered.

2.  The available record shows the applicant accepted NJP on four separate occasions for different offenses.  He was discharged for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  According to the applicable regulation, the undesirable discharge he received is proper.

3.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the fact that the character of service was not dishonorable or based on the passage of time.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  Although his discharge packet is not available for review, there is no evidence of record and the applicant did not provide any evidence that suggests there was any error or injustice related to his separation processing.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20130005552



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ABCMR Record of Proceedings (cont)                                         AR20130005552



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