IN THE CASE OF:	  

		BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130010257 


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 was told after a certain amount of time (6 months) his discharge could 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 (RA), in pay grade E-4, on 18 July 1978.  He completed training and was awarded military occupational specialty 22L (Nike Test Equipment Repairman).  
3.  He reenlisted in the RA on 22 May 1981 for four years.  

4.  On 17 March 1983, he accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty on 15 March 1983.

5.  He received counseling between 15 March and 16 May 1983 for being absent from mandatory company formations, his constant lateness, and being picked up for public intoxication.

6.  On 25 May 1983, he accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty on 16 May 1983.  

7.  On 3 June 1983, a bar to his reenlistment was approved.

8.  On 1 and 11 August 1983, he received counseling for missing formation and absenting himself from his place of duty for the entire day.

9.  On 8 September 1983, he accepted NJP under Article 15, UCMJ, for being absent without leave (AWOL) from 29 through 31 August 1983.  

10.  On 22 September 1983, he received counseling for failure to repair, being late for work, AWOL, and absenteeism.

11. On 2 December 1983, it was determined his bar to reenlistment would remain in effect.

12.  On 18 October 1983, the applicant’s company commander notified the applicant of proposed action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 14, paragraph 14-12Bbfor a series of misconduct.   He advised the applicant of his rights and that he could receive a general discharge.  He also advised the applicant that he may apply to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded.

13.  On 18 October 1983, after consulting with counsel, the applicant acknowledged receipt of the proposed separation and receipt of a general discharge.  He elected to have his case considered by a board of officers. 

14.  A DA Form 3822-R (Mental Status Evaluation), dated 31 October 1983, shows was cleared mentally for any further administrative action deemed appropriate by the command. 
15. On 13 February 1984, the board of officers convened and found the applicant undesirable for further retention in the military service because of conduct prejudicial to good order and discipline.  The board recommended he be discharged with the issuance of a general discharge.

16.  He was discharged in pay grade E-2 on 15 March 1984, under the provisions of Army Regulation 635-200, paragraph 14-12b, for Misconduct.  He was credited with completing 5 years, 7 months, and 26 days of net active service with 2 days of time lost.  His service was characterized as under honorable conditions (general).  

17.  There is no evidence the applicant applied to the ADRB within its 15-year statute of limitations for an upgrade of his discharge.

18.   Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 14-12b - members are subject to separation per this paragraph for a pattern of misconduct consisting of conduct prejudicial to good order and discipline.  A discharge under other than honorable conditions was normally considered appropriate.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received multiple counselings and was punished under Article 15 between March and September 1983 for misconduct.  His company commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, for a series of misconduct.  A board of officers recommended his discharge and after his discharge was approved he was discharged accordingly on 15 March 1984.

2.  It appears that based on his overall record it was directed he receive a general discharge.  Normally such service as his would be characterized as under other than honorable conditions.

3.  He provided insufficient evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his general discharge.  

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his general discharge.

5.  At the time of his separation, he acknowledged he could apply to the ADRB or ABCMR for an upgrade of his discharge and that such consideration act by either board did not imply his discharge would be upgraded.

6.  Additionally, the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge due to the passage of time.

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)                                         AR20130010257





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ABCMR Record of Proceedings (cont)                                         AR20130010257



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