IN THE CASE OF:	  

		BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130016597 


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 honorable.

2.  The applicant states:

* he was discharged for failure to meet body fat standards, not for any criminal or disciplinary action
* he served honorably
* for the type of discharge he received he heard that after 6 months it would be upgraded if requested 

3.  The applicant provides no additional documentary 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 2 July 1981 for a period of 
4 years.  He completed his training and was awarded military occupational specialty 63B (light wheel vehicle and power generator mechanic).  

3.  In January 1984, nonjudicial punishment was imposed against him for being drunk while on duty as a guard and disobeying a lawful order. 

4.  He was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  His unit commander cited:

* his failure to meet body fat standards
* his apathetic attitude towards his military duties
* in January 1984 he was found to be 21 pounds overweight
* in March 1984 he was found to be 33 pounds overweight
* in December 1983 he was found to be drunk on duty 
* his potential for advancement and leadership was highly unlikely

5.  On 20 March 1984, he consulted with counsel and he acknowledged notification of his pending separation action.  He also acknowledged he understood he might encounter substantial prejudice in civilian life if a general discharge was issued.  He elected not to submit a statement in his own behalf.

6.  On 22 March 1984, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows on 11 April 1984 he was discharged under the provisions of Army Regulation 635-200, chapter 13, for failure to meet body fat standards with a general discharge.  He completed 2 years, 9 months, and 10 days of creditable active service.

8.  There is no evidence in the available records that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel.

	a.  Chapter 13, in effect at the time, provided for separation due to unsatisfactory performance when, in the commander's judgment, the individual would not become a satisfactory Soldier; the service member failed to meet body fat standards; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  Service of Soldiers separated because of unsatisfactory performance under this chapter would be characterized as honorable or under honorable conditions.

	b.  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.

10.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge, or both, was improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was discharged for failure to meet body fat standards, not for any criminal or disciplinary action.  Evidence shows he was discharged for unsatisfactory performance due to failure to meet body fat standards.  However, his service was marred by instances of misconduct.

2.  He contends he heard his discharge would be upgraded after 6 months if requested.  However, a discharge upgrade is not automatic.

3.  His record of service included one NJP and it appears his duty performance was marginal.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

6.  In view of the foregoing, 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 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)                                         AR20130016597





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ABCMR Record of Proceedings (cont)                                         AR20130016597



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