IN THE CASE OF:	  

		BOARD DATE:	  20 March 2014

		DOCKET NUMBER:  AR20130013047 


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 that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states that his youthfulness made it more difficult to adapt to a military environment. 

3.  The applicant provides no additional documents with his application,

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 with parental consent in Knoxville, Tennessee on 27 November 1973 for a period of 3 years and assignment to the 25th Infantry Division as a duty Soldier.  
3.  He completed his basic training at Fort Knox, Kentucky and was transferred to Hawaii on 18 February 1974 for assignment to a transportation battalion.  He was advanced to the pay grade of E-2 on 27 March 1974. 

4.  On 4 June 1974, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty on 28 May 1974.

5.  On 20 September 1974, NJP was imposed against the applicant for operating a motor vehicle without a valid operator’s permit and failure to go to his place of duty.

6.  On 11 October 1974, the applicant’s commander notified him that he was initiating action to bar him from reenlistment.  He cited as the basis for his recommendation the applicant’s disciplinary record and his failure to respond to numerous counseling sessions.  During the period of 12 March to 4 October 1974, the applicant was counseled on 22 occasions for poor duty performance, poor hygiene, failure to go to his place of duty, poor appearance, poor attitude, and possession of a substance suspected to be marijuana. 

7.  The applicant declined the opportunity to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment on 21 October 1974. 

8.  Meanwhile, the applicant’s commander also notified the applicant that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 13 for unsuitability.  He cited as the basis for his recommendation that the applicant had NJP imposed against him twice and was pending another and that he had failed to respond to numerous counseling sessions.

9.  After consulting with defense counsel the applicant waived his rights and elected to submit a statement in his own behalf whereas he asserted that while he had made some mistakes, he was a hard worker and could do a good job if given another chance because he did not want to be discharged, especially with less than an honorable discharge.

10.  The battalion commander indicated that the applicant had been constantly involved in incidents of a discreditable nature with his superiors and his attitude, apathy, lack of initiative and motivation and overall unsatisfactory job performance have required an inordinate amount of supervision and a rehabilitative transfer would only pass the problem on to another commander for elimination.

11.  The appropriate authority approved the recommendation for discharge on 
23 October 1974 and directed that he be furnished a General Discharge Certificate. 

12.  Accordingly, he was discharged under honorable conditions on 3 November 1974 under the provisions of Army Regulation 635-200, paragraph 13-5b (3) due to unsuitability.  He had served 11 months and 7 days of active service.

13.  There is no evidence in the available records to show that he applied to the Army Discharge review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

14.  Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance if it was determined that the member would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A discharge under honorable conditions was normally considered appropriate.

15.  Paragraph 3-7a of Army Regulation 635-200 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 applicant's administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant's contentions have been noted; however, they are not supported by the evidence of record and are not sufficiently mitigating to warrant relief when compared to his overall record of service and his repeated misconduct.  

4.  Accordingly, there does not appear to be any basis to grant his request for an upgrade of his discharge to fully honorable.

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)                                         AR20130013047



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ABCMR Record of Proceedings (cont)                                         AR20130013047



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