IN THE CASE OF:	  

		BOARD DATE:	  27 March 2014

		DOCKET NUMBER:  AR20130010069 


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 "dishonorable" discharge to honorable.

2.  The applicant states he was discharged under honorable conditions (general) under the provisions of Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13.  He was told his discharge would change to an honorable discharge after an unspecified amount of time.

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 6 November 1979.  He successfully completed basic and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).

3.  On 23 February 1980, he was assigned to Company B, 326th Engineer Battalion, 101st Airborne Division (Air Assault), Fort Campbell, KY.

4.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the reasons specified:

* 6 January 1981 – for sleeping while performing charge of quarters duty
* 6 April 1981 – for failing to be at his appointed place of duty
* 1 September 1981 – for failing to be at his appointed place of duty
* 24 November 1981 – for being disrespectful toward a commissioned officer

5.  The applicant's records reveal a disciplinary history that includes general counseling statements on the following dates for the reasons specified:

* 24 May 1981 – for not wearing rank on his uniform
* 3 July 1981 – for his appearance
* 6 July 1981 – for failing to report to Air Assault School
* 15 July 1981 – for reporting late to morning formation
* 7 November 1981 – for reporting late to formation and poor attitude
* 11 November 1981 – for reporting late to morning formation and poor attitude
* 28 May 1982 – for not wearing rank on his uniform
* 8 June 1982 – for not brushing his boots for formation inspection

6.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 23 June 1982, shows the applicant underwent a mental evaluation for discharge because of unsuitability.  The military psychiatrist determined the applicant had the mental capacity to understand and participate in the proceedings; was mentally responsible; met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3; and was cleared for any administrative action deemed appropriate by the command.

7.  On 11 June 1982, the applicant's commander recommended his elimination from military service for unsuitability under the provisions of Army Regulation 635-200, chapter 13.  The reasons cited by the commander were the applicant's receipt of four Article 15's, counseling on numerous occasions, and placement on special duty in the mess hall.

8.  On 23 June 1982, he was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant acknowledged he was advised that he was being recommended for discharge under the provisions of Army Regulation 
635-200, chapter 13.  The applicant requested counsel and elected to submit a statement in his own behalf.  His statement is unavailable.

9.  On 15 July 1982, the appropriate authority approved the applicant's separation for unsuitability, waived the rehabilitative transfer requirement, and directed his discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 13.

10.  On 26 July 1982, the applicant was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 13-4c(1).  He completed 2 years, 8 months, and 21 days of creditable active service with no lost time.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 in effect at the time provided that a member would be separated when it was determined that he or she was unqualified for further military service because of unsuitability.  Commanders would separate a Soldier for unsuitability when it was clearly established that, in the commander's judgment, the Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

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.  Although the applicant contends he was told his discharge would be upgraded to honorable after an unspecified amount of time, the U.S. Army does not now have and it has never had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in his or her discharge.  Changes may be warranted if the Board determines the character of service or the reason for discharge, or both, was improper or inequitable.

2.  His administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.

4.  His records show he received four Article 15's and received numerous negative counseling's.  Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable 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 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)                                         AR20130010069



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ABCMR Record of Proceedings (cont)                                         AR20130010069



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