IN THE CASE OF:	

		BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130013060


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 under honorable conditions (general) discharge.

2.  The applicant states, due to his age and actions at the time, he agreed to an early discharge.  He made many mistakes when he was young and he regrets accepting an early discharge.  While on active duty, he had sought to be a professional photographer.  Prior to enlisting, he graduated from the New York Institute of Photography; however, despite his requests, he was never given the opportunity to be a photographer in the Army – this resulted in his early separation.

3.  The applicant provides no additional evidence in support of his request.

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.  On 18 October 1972, at the age of 18 years, the applicant enlisted in the Regular Army.  He completed his initial entry training and was awarded military occupational specialty (MOS) 94B (Cook).  

3.  On 22 June 1973, upon the completion of his initial entry training, he was assigned to Headquarters and Headquarters Battery, 75th Artillery Group, Fort Sill, OK.

4.  His record shows he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions:

* on 20 February 1973, for absenting himself from his unit from on or about 16 February 1973 through on or about 19 February 1973
* on 14 March 1973, for failing to go at the prescribed time to his appointed place of duty, on or about 9 March 1973
* on 3 May 1973, for failing to go at the prescribed time to his appointed place of duty, on or about 2 May 1973
* on 1 August 1973, for willfully disobeying a lawful order, on or about       30 July 1973
* on 17 August 1973, for failing to go at the prescribed time to his appointed place of duty, on or about 17 August 1973
* on 8 August 1974, for failing to go at the prescribed time to his appointed place of duty, on or about 7 August 1974
* on 10 October 1974, for failing to go at the prescribed time to his appointed place of duty, on or about 7 October 1974, and for being found asleep in his room, on or about 7 October 1974
* on 9 January 1975, for absenting himself from his unit from on or about 
		23 December 1974 through on or about 27 December 1974

5.  On 11 February 1975, he was notified by his immediate commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 
5-37 (Expeditious Discharge Program).  As the reason for his proposed action, his immediate commander cited his:

* inability to accept instructions or directions
* clearly substandard performance
* lack of cooperation with peers and superiors
His immediate commander recommended he receive a general discharge, characterized as an under honorable conditions.  

6.  On 11 February 1975, after consultation with counsel, he acknowledged notification of his proposed separation from the Army.  He indicated his voluntary consent to the separation action and declined to submit statements in his own behalf.  He acknowledged he understood if his service was characterized as under honorable conditions, he could expect to encounter substantial prejudice in civilian life.  

7.  On 18 February 1975, the separation authority approved his discharge and directed he receive an under honorable conditions (general) characterization of service.

8.  On 21 February 1975, at the age of 20 years, he was discharged from the Army under the provisions of Army Regulation 635-200, paragraph 5-37.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years and 4 months of net active service.  His DD Form 214 further shows he was issued an under honorable conditions (general) characterization of service.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a. Paragraph 3-7a provides that an honorable discharge or relief from active duty 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.

   b. Paragraph 3-7b provides that an under honorable conditions (general) discharge or relief from active duty is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge or honorable relief from active duty.

10.  The Department of the Army began testing the Expeditious Discharge Program in October 1973.  In a message, dated 8 November 1974, the Deputy Chief of Staff for Personnel announced the expansion of the Expeditious Discharge Program.  The program provided for the separation of Soldiers whose acceptability, performance of duty, and/or potential for continued effective service fell below the standards required for retention in the Army.  Soldiers could be separated under this program when subjective evaluation of their commanders identified them as lacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  An honorable or general discharge was required and there has never been any provision for an automatic upgrade of a discharge less than fully honorable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under honorable conditions (general) characterization of service was carefully considered; however, there is insufficient evidence to support his request.  

2.  The applicant contends his discharge should be upgraded because the mistakes he made during his period of service can be attributed to his youthfulness at the time.  He was 18 years of age at the time of his enlistment, and 20 years of age at the time of his discharge; however, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their periods of military service.

3.  He contends his acts of misconduct can be attributed to the Army's refusal to allow him to serve as a photographer.  This contention is rejected, as it neither explains nor justifies his misconduct.  

4.  The evidence of record shows he was notified of his commander's intent to separate him.  He consulted with counsel and voluntarily consented to the separation action.  He declined to submit statements in his own behalf and he acknowledged he understood if his service was characterized as under honorable conditions, he could expect to encounter substantial prejudice in civilian life.  There is no indication of procedural errors which could have jeopardized his rights.

5.  His service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel; therefore, he is not entitled to 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 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)                                         AR20090018593



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ABCMR Record of Proceedings (cont)                                         AR20130013060



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