BOARD DATE:	  19 February 2014

		DOCKET NUMBER:  AR20130011004 


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 his general discharge was supposed to be automatically upgraded to an honorable discharge within 6 months after his discharge from the Army.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 20 August 1974, for 3 years.  
He was advanced to pay grade E-2 on 20 December 1974.  He did not complete advanced individual training for award of a military occupational specialty.

3.  In a statement, dated 19 March 1975, a staff member of the Behavior Science Department stated the applicant was referred to the Alcohol and Drug Control Office (ADCO) by his commanding officer after being arrested twice for driving while intoxicated (DWI).  He interviewed the applicant on 21 January 1975.  Since the applicant was a student with a conflicting schedule, he felt it would be best to see the applicant once a week.  The applicant never returned for his appointment and his unit was notified that he did not show for his appointment.  He felt that based on the interview and a third DWI charge, the applicant did in fact have a serious alcohol problem and at that point in time was not amenable to treatment.

4.  A certificate shows the applicant underwent a psychiatric evaluation on 19 March 1975.  The Chief, Mental Health Clinic, diagnosed the applicant with a mixed character disorder with excessive use of alcohol, impulsiveness, and passive aggressive behavior with marked impairment for further military service.  He found the applicant had no mental disease or condition sufficient to warrant disposition through medical/psychiatric channels and the applicant was mentally responsible, both to distinguish right from wrong and to adhere to the right.  The applicant was cleared psychiatrically for any administrative action or disposition as deemed appropriate by his command.

5.  On 15 April 1975, the applicant's company commander notified the applicant of the proposed action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 5-37, with a general discharge.  The company commander stated the reasons for the proposed action were:  the applicant's arrest on 4 separate occasions for DWI which at the present time there were dispositions pending on 3 of those charges, several counselings with negative results, his substandard conduct and efficiency, his failure to respond to counseling and treatment, his psychiatric evaluation, and his evaluation by the ADCO.  He advised the applicant of his rights.

6.  On 15 April 1975, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a general discharge and the results of the receipt of a general discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

7.  On 15 April 1975, the Commander, U.S. Army Engineer School Brigade, recommended approval of the applicant's discharge.  He stated that the applicant's alcohol problem was such as to preclude the applicant's useful service in the Army.

8.  On 28 April 1975, the separation authority approved the applicant’s discharge and directed the issuance of a General Discharge Certificate.

9.  He was discharged accordingly in pay grade E-2 on 1 May 1975, under the provisions of Army Regulation 635-200, paragraph 5-37, with a general discharge.  He completed 8 months and 15 days of net active service with no time lost.

10.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

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

   a.  Paragraph 5-37, allowed for the discharge of personnel whose performance of duty, acceptability for the service, and potential for continued effective service fell below the standards required for enlisted personnel in the U.S. Army.  The policy enabled commanders to anticipate and preclude the development of conditions which clearly indicated that Soldiers concerned were becoming problems to an extent likely to lead to board punitive action which could result in their separation under conditions which would stigmatize them in the future and provided commanders appropriate means for separating such personnel before board or punitive action became necessary.  Normally, an honorable discharge would be awarded unless the Soldier's conduct clearly substantiated a general discharge.

   b.  Paragraph 3-7a, stated 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 applicant provides no 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.  The evidence shows his potential for continued effective service fell below the standards required for enlisted personnel in the U.S. Army.  His substandard conduct and efficiency and failure to respond to counseling and treatment diminished the quality of his service below that meriting a fully honorable discharge.

2.  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 honorable discharge.

3.  Additionally, the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge within 6 months of discharge and/or 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)                                         AR20130011004





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ABCMR Record of Proceedings (cont)                                         AR20130011004



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