IN THE CASE OF: 

		BOARD DATE:	    1 April 2014

		DOCKET NUMBER:  AR20130013547 


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 undesirable discharge to an honorable discharge.

2.  The applicant states he made an error in judgment while intoxicated by being disrespectful to his noncommissioned officer (NCO).  He realizes his actions at the time were not the correct response to his NCO.  Being intoxicated was not an excuse for his behavior.  He believes 37 years is a sufficient amount of time to pass for forgiveness for his behavior.

3.  The applicant provides 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 4 October 1974.  He successfully completed basic and advanced individual training and was awarded military occupational specialty 11E (Armor Crewman).

3.  On 30 March 1975, he was assigned to Troop C, 3d Squadron, 8th Cavalry Regiment, Germany.

4.  A DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate) dated 16 December 1975 shows the applicant was barred from reenlistment for unsatisfactory conduct and efficiency and for receiving nonjudicial punishment (NJP) twice.  His commander stated the applicant demonstrated a continuous lack of maturity.  He had been counseled on numerous occasions, and although immediate improvement was visible, he shortly returned to an unacceptable stage.  His appearance and military bearing were below standards.

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

* 7 September 1975 – for being incapacitated for the proper performance of his duties due to prior indulgence in intoxicating liquor
* 24 November 1975 – for disobeying a lawful order issued by a commissioned officer
* 21 April 1976 – for failing to be at his appointed place of duty and for being incapacitated for the proper performance of his duties due to prior indulgence in intoxicating liquor
* 7 May 1976 – for failing to be at his appointed place of duty and for being incapacitated for being incapacitated for the proper performance of his duties due to prior indulgence in intoxicating liquor
* 13 May 1976 – for failing to be at his appointed place of duty and for being found drunk on duty as sentinel of the guard
* 22 June 1976 – for disobeying a lawful order by an NCO and for treating an NCO with contempt

6.  His separation proceedings are not available and his service personnel records do not contain the facts and circumstances surrounding his separation processing.  However, his DD Form 214 for the period ending 19 August 1976 shows in:

* item 9c (Authority and Reason) – Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a(1), separation program designator code JLB
* item 9e (Character of Service) – under conditions other than honorable
* item 18a (Net Active Service This Period) – 1 year, 10 months, and 16 days

7.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature with civilian/military authorities, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

8.  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.

9.  Army Regulation 635-200, paragraph 3-7b provides that a general discharge 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his undesirable discharge due to the passage of time was carefully considered.

2.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Furthermore, the Army has never had a policy whereby a discharge was upgraded due solely to the passage of time.

3.  The applicant's military service records show he abused alcohol, he had two incidents of being incapacitated for the proper performance of his duties, he was disrespectful toward an officer and an NCO, he was not at his appointed place of duty on numerous occasions, he was found drunk on guard duty, he received NJP six times, and he was barred from reenlistment.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or a general 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)                                         AR20130013547



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ABCMR Record of Proceedings (cont)                                         AR20130013547



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