IN THE CASE OF:	  

		BOARD DATE:	  19 August 2014

		DOCKET NUMBER:  AR20130021737 


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 his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states the hardship he was discharged for no longer exists.  He has been out of the Army for over 40 years.  He is now a 100 percent disabled veteran and he requests his discharge be upgraded.

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

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 11 August 1972, he enlisted in the Regular Army for 2 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 76Y (Supply Clerk).

3.  On 7 January 1973, he was assigned to Company A, Troop Command, White Sands Missile Range, NM.

4.  On 23 February 1973, he received nonjudicial punishment (NJP) for willfully disobeying a lawful order from a commissioned officer.

5.  On 2 April 1973, he received NJP for:

* behaving with disrespect toward a commissioned officer
* failing to obey a lawful order from a commissioned officer
* being absent from his appointed place of duty

6.  The applicant's commander recommended that he be barred from enlistment/reenlistment in the service.  The commander stated:

* the applicant had a record of 2 NJP's in his short period in the organization
* he had counseled the applicant on numerous occasions and advised him of the adverse consequences which could ensue from this or similar actions
* the applicant's conduct was unsatisfactory and his efficiency was fair

7.  The applicant acknowledged he had read and understood the allegations made by his commander and he elected not to make a statement.

8.  On 1 May 1973, the bar to reenlistment was approved.

9.  On 12 June 1973, he requested a hardship discharge in order to take care of his grandmother.  On 13 July 1973, the appropriate authority approved his request and directed he be issued a General Discharge Certificate.

10.  On 16 July 1973, he was discharged by reason of hardship.  He completed 11 months and 6 days of active service that was characterized as under honorable conditions.

11.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

  
12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 6 stated Soldiers of the Active Army and the Reserve Components could be discharged or released because of genuine dependency or hardship.  The regulation provided that hardship existed when, in circumstances not involving death or disability of a member of a Soldier’s (or spouse’s) immediate family, separation from the Service would materially affect the care or support of the family by alleviating undue and genuine hardship.  Service of Soldiers separated because of hardship was characterized as honorable or general under honorable conditions as warranted by their service record.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  He was discharged by reason of hardship.  However, within 5 months of his being assigned to Company A, Troop Command, White Sands Missile Range, NM, he received NJP on two occasions for disrespect toward and failing to obey orders from a commissioned officer.  As a result he received a bar to reenlistment after having been in the Army for only a little over 8 months.  He clearly had not met the standards of acceptable conduct and performance of duty for Army personnel.

2.  His conduct was not sufficiently meritorious to warrant an honorable discharge and the reason for his separation specifically allows a characterization of general under honorable conditions.

3.  The applicant contends he was discharged over 40 years ago for a hardship that no longer exists and he is now a 100 percent disabled veteran.  While the hardship that he was discharged for may no longer exist, it does not change the reason he was discharged in 1973.  Additionally, the ABCMR does not upgrade properly-issued discharges based solely on the passage of time.  
4.  In view of the foregoing, there is an insufficient basis to upgrade the applicant's general discharge under honorable conditions.

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)                                         AR20130021737



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ABCMR Record of Proceedings (cont)                                         AR20130021737



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