IN THE CASE OF:
BOARD DATE: 14 November 2013
DOCKET NUMBER: AR20130006524
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 general discharge to an honorable discharge.
2. The applicant states he served honorably for five years; however, the last couple of months he was under the influence of drugs. He further states he confessed the problem, went to treatment, and he has been clean since his discharge.
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 30 June 1971. He completed training and he was awarded military occupational specialty 11D (Armor Reconnaissance Specialist). On 4 June 1973, he was honorably discharged for the purpose of immediate reenlistment.
3. The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 11 March 1976 for being absent without leave (AWOL) for the period 1 through 8 March 1976.
4. On 17 March 1976, the applicant was notified of initiation of separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13 for unsuitability (apathy, lack of appropriate interest, defective attitude, and inability to expend effort constructively).
5. On 18 March 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him. He waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and elected not to submit a statement in his own behalf.
6. On 18 March 1976, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsuitability (apathy, lack of appropriate interest, a defective attitude, and an inability to expend effort constructively). The immediate commander further requested a waiver of a rehabilitative transfer. He stated the applicant had progressively become more and more apathetic toward his performance of duty. It had also affected his family and he had neglected his financial obligations. He further stated the applicant had been repeatedly counseled by his supervisors regarding his inability to manage his financial affairs and his duty performance. His apathetic attitude resulted in his recent punishment under Article 15, UCMJ for being AWOL.
7. On 28 April 1976, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 13, and directed that he be issued a General Discharge Certificate.
8. On 26 May 1976, the applicant was discharged accordingly. The
DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was separated under honorable conditions and he completed 4 years, 10 months, and 20 days of creditable active military service with 7 days of lost time.
9. There is no evidence in the applicant's records nor did he provide any evidence which shows he suffered from a drug problem at any time during his service.
10. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 of the regulation set forth the basic authority, established the policy, and prescribed the procedures for separating members for unsuitability (apathy, defective attitude and inability to expend effort constructively). Members separating under this provision of the regulation could receive either an honorable or a general discharge.
12. 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.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards. Accordingly, his immediate commander initiated separation action against him for unsuitability.
2. The available evidence shows his duty performance was tarnished by being AWOL and a history of negative counseling. The evidence further shows his separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights. His general discharge is commensurate with his overall record of military service.
3. There is no evidence in the applicant's record and he did not provide any evidence to support his contention that he was under the influence of drugs at any time throughout his service.
4. Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel. In view of the foregoing, there is insufficient evidence to grant him the 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) AR20130006524
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