IN THE CASE OF:	 

		BOARD DATE:	  16 April 2014

		DOCKET NUMBER:  AR20130014589 


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 under honorable conditions to honorable.

2.  He states he was told his discharge would be upgraded to honorable 10 years after his discharge.

3.  He 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 on 24 January 1972.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice, on three occasions for the following offenses:

* being disrespectful in language toward his superior noncommissioned officer (NCO)
* using contemptuous words against his commanding officer
* using disrespectful language towards his superior NCO
* destroying U.S. Government property 
* damaging U.S. Government property
* failing to go at the time prescribed to his appointed place of duty on 13 December 1972
* failing to go at the time prescribed to his appointed place of duty on 14 December 1972
* failing to go at the time prescribed to his appointed place of duty on 18 December 1972

4.  In May and November 1982, he received counseling for his appearance (not shaving), failing to follow instructions issued by supervisors, and his direct confrontation with military authority.

5.  On 12 January 1973, the applicant's unit commander notified him of his pending separation for unsuitability under the provisions of Army Regulation 
635-200 (Personnel Separations), chapter 13, due to apathy, defective attitudes, or inability to expend efforts constructively.  The applicant was advised of his rights.  He acknowledged notification of the separation action, consulted with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and did not submit a statement in his own behalf.

6.  On 2 March 1973, the separation authority approved the separation action, waived rehabilitation requirements, and directed a general discharge.

7.  He was discharged on 12 March 1973 under the provisions of Army Regulation 635-200, paragraph 13-5b(3), by reason of unsuitability – apathy, defective attitude, or inability to expend effort constructively.  He completed 1 year, 1 month, and 19 days of active military service.

8.  His service record does not indicate he applied to the Army Discharge Review Board (ADRB) within that board's 15-year statute of limitations.

9.  Army Regulation 635-200, chapter 13, in effect at the time, applied to separation for unfitness and unsuitability.  Paragraph 13-5b provided for the separation of individuals for unsuitability whose records evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

10.  Army Regulation 635-200, paragraph 3-7a, currently in effect, 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 record is devoid of any evidence and he did not provide any evidence to show he was ever told he would be issued an honorable discharge 10 years after his separation.  The Army does not currently have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.

2.  The applicant's administrative discharge proceedings under the provisions of Army Regulation 635-200, paragraph 13-5b(3), were conducted in accordance with law and regulations applicable at that time.

3.  The applicant's service records show he received three Article 15's and adverse counseling during the period under review.

4.  It appears the chain of command determined the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general under honorable conditions.

5.  There is no evidence of record which indicates the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's requested relief.



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)                                         AR20130014589



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ABCMR Record of Proceedings (cont)                                         AR20130014589



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