IN THE CASE OF: 

		BOARD DATE:	    16 January 2014

		DOCKET NUMBER:  AR20130005963 


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 discharge be upgraded to an honorable discharge.

2.  The applicant states during his ten years of service he received three honorable discharges, three Army Good Conduct Medals, and an Army Commendation Medal.  He is very proud to have served his country and not a day goes by that he does not regret the decisions that he made during the last days of his service.  He is simply ashamed and does not want to die without trying to correct his discharge.

3.  The applicant provides:

* DA Form 20 (Enlisted Qualification Record)
* 3 DA Forms 2-1 (Personnel Qualification Record)
* 3 DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge/Report of Separation from Active Duty)
* 2 DA Forms 2627 (Record of Proceeding Under Article 15, Uniform 
Code of Military Justice (UCMJ))
* DA Form 2496-1 (Disposition Form)
* DA Form 38-33-R (Report of Mental Status Evaluation)
* Discharge packet with allied documents



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 15 April 1969.  The highest rank and pay grade he held was staff sergeant/E-6.  He subsequently reenlisted for the following periods of service:

* 16 December 1969 to 26 September 1974
* 27 September 1974 to 13 June 1979

3.  On 31 August 1976, he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for three specifications of failing to go to his appointed place of duty at the time prescribed and was reduced to sergeant/E-5.

4.  On 18 March 1979, the applicant was counseled by his commander in reference to his apathetic attitude toward the Army and his desire to be discharged from the Army.  The applicant's commander recommended that he not seek a discharge, but he would assist him with a discharge despite its undesirable effects.

5.  On 30 March 1979, he accepted NJP for three specifications of failing to go to his appointed place of duty and was reduced to specialist/E-4.

6.  On 19 April 1979, the applicant's commander notified the applicant of his intent to initiate action to discharge him under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsuitability because of apathy, defective attitudes, and inability to expend effort constructively.

7.  He acknowledged he had been advised by counsel of the basis for the contemplated action to accomplish his separation for unsuitability.  He waived his right to consideration of his case by a board of officers, to a personal appearance before a board of officers, to submit statements in his own behalf, and to representation by counsel.  He indicated he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.

8.  On 22 May 1979, the separation authority approved the recommendation to discharge him and directed that he receive a General Discharge Certificate.  On
13 June 1979, he was discharged accordingly.  He completed 10 years, 1 month, and 27 days of total active service.

9.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

10.  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 provided for separation for unsuitability due to apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions.

	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 does not support the applicant's request for an upgrade of his general discharge.

2.  The applicant contends, in effect, that his honorable service and his numerous service awards warrant the upgrade of his discharge.  However, based on his record of indiscipline, which includes two NJP's for six violations of the UCMJ, his 


service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service insufficiently meritorious to warrant an honorable discharge.  Therefore, he is not entitled to an Honorable Discharge Certificate.

3.  The applicant's separation for unsuitability was proper and equitable and in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  Based on 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)                                         AR20130005963



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ABCMR Record of Proceedings (cont)                                         AR20130005963



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