IN THE CASE OF:	

		BOARD DATE:	  10 July 2014

		DOCKET NUMBER:  AR20130019506 


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 the following:

* an upgrade of his general discharge to an honorable discharge
* correction of item 12b (Separation Date This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty)

2.  The applicant states:

   a.  He was advised by his commander that his discharge would be fully upgraded to honorable six months after his discharge.  This did not happen as he thought it would.  Also, the separation date shown in item 12b of his DD Form 214 is incorrect as he not was discharged on 7 July 1980, it was 2 August 1980.

   b.  It was determined that all military police (MP) had to have a diploma or general educational development (GED) certificate and he did not have one.  He was discharged with a general discharge for unsuitability-apathy, defective attitudes or inability to expend effort constructively, and a reenlistment code (RE) of RE-3B.  He believes this was unfair or unjust because he had been an MP for 2 years and 8 months prior to this decision.  He deserves to receive the status he earned, that of honorable, because of his commitment to his duties and to the service he provided which were just that, honorable.  He had no complaints until it was decided all MPs were required to have diplomas.


3.  The applicant provides copies of his DD Form 214 and 2001 high school diploma.

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 U.S. Army Reserve Delayed Entry Program (DEP) on 31 December 1976.  In item 24 (Education) of his DD Form 1966 (Application for Enlistment – Armed Forces of the United States), he indicated that he had not graduated from high school.  He was discharged from the DEP on 1 August 1977.

3.  He enlisted in the Regular Army (RA) in pay grade E-1 on 2 August 1977 for 3 years.  He served as an MP.  He was promoted to pay grade E-3 on 2 August 1978.  He served in Germany from 23 November 1977 through 5 July 1980. 

4.  He accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on/for:

* 1 September 1977 - failing to obey a lawful order from his superior noncommissioned officer
* 7 September 1978 – failing to go to his appointed place of duty
* 3 December 1979 – operating a motorcycle in a reckless manner, failing to signal while turning, making an illegal U-turn, and driving without a face shield or goggles

5.  On 20 December 1979, he spoke with his noncommissioned officer in charge (team leader) and requested an early discharge.  He was appropriately advised that there was no stipulation in Army regulations for Soldiers to quit.  He was further advised that he made an obligation to the Army and it was his duty to fulfill that obligation.  He had served approximately 29 months of a 36-month commitment.  
6.  On 26 March 1980, he again accepted NJP under Article 15 for being absent without leave from 10 to 22 February 1980.

7.  An MP Report, dated 5 May 1980, shows a complaint was filed against him for communicating a threat, drunk and disorderly conduct, and possession of a prohibited item.  The complaint was referred to his command for action.

8.  There is no indication in his record he was counseled on the requirement that all Soldiers serving as an MP must have a high school diploma or GED and that since he did not possess either he would be discharged from the Army.  

9.  On 27 May 1980, the applicant’s company commander initiated action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 13-4c, for unsuitability.  He advised the applicant of his rights.

10.  On 29 May 1980, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a general discharge and the results of the receipt of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

11.  On 29 May 1980, the applicant's company commander recommended the applicant be discharged for unsuitability because of apathy (lack of appropriate interest), defective attitudes and inability to expand effort constructively (paragraph 13-4c).  He stated the applicant had been formally counseled on five occasions.  He recommended a waiver of the requirements of paragraphs 13-6 and 13-7 because further retention on active duty would be inappropriate; the applicant was obviously resisting all rehabilitation attempts or rehabilitation would not produce the quality Soldier desired by the Army.

12.  On 4 June 1980, the applicant’s battalion commander recommended approval of the discharge.

13.  On 23 June 1980, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge.

14.  Order Number 177-6, issued by the 189th Personnel Service Company, dated 25 June 1980, discharged him from active duty with an effective date of 7 July 1980.


15.  Accordingly, he was discharged in pay grade E-3.  He was credited with completing 2 years, 10 months, and 24 days of net active service and 12 days of time lost.  His DD Form 214 lists in:

* Item 12a (Date Entered Active Duty This Period) - 2 August 1977
* Item 12b (Separation Date this Period) - 7 July 1980

16.  He provided a copy of his New Mexico High School Diploma, dated 20 July 2001.

17.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

18.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 13-4c – Commanders would separate a Soldier for unsuitability and order separation for apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  Commanders would ensure that before taking separation adequate counseling and rehabilitation measures had been taken.  An individual separated because of unsuitability would be furnished an honorable or general discharge certificate as warranted by his military record. The type of discharge would be directed by the convening authority.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

19.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated the DD Form 214 would be prepared for all personal at the time of their retirement, discharge, or release from active duty.  The regulation stated item 12b would list the date separation was accomplished.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received several punishments under Article 15 and was counseled on his desire to quit the Army.  He was advised that he made an obligation to the Army and it was his duty to fulfill that 
obligation.  In May 1980, a complaint was filed against him for communicating a threat, drunk and disorderly conduct, and possession of a prohibited item.  The complaint was referred to his command for action.

2.  The applicant's company commander initiated action to discharge the applicant for unsuitability because of apathy (lack of appropriate interest), defective attitudes and inability to expend effort constructively (paragraph 13-4c). The company commander stated that further retention on active duty would be inappropriate because the applicant was obviously resisting all rehabilitation attempts or because rehabilitation would not produce the quality Soldier desired by the Army.

3.  The separation authority approved his discharge and directed the issuance of a general discharge.  He was discharged in pay grade E-3 on 7 July 1980.

4.  His contentions and the documentation he submitted were carefully considered.  However, notwithstanding the evidence showing he had not graduated from high school at the time of his enlistment, there is no evidence action was initiated to separate him for that reason.  It is clear he was processed for separation because of unsuitability.  His record is void of any evidence to show he was advised that he was being discharged due to not having a diploma or GED since a decision had been made that all MPs were required to have either.  

5.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct during his period of active duty diminished the quality of his service below that meriting a fully honorable discharge.

6.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his discharge.

7.  Additionally, the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge due to the passage of time.

8.  He enlisted in the RA on 2 August 1977.  Orders were issued discharging him from active duty with an effective date of 7 July 1980.  He was discharged accordingly on that date.  Therefore, he is not entitled to correction of item 12b of his 1980 DD Form 214 to show he was discharged on 2 August 1980.  His separation date was properly listed on the issued DD Form 214.

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)                                         AR20130019506



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ABCMR Record of Proceedings (cont)                                         AR20130019506



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