IN THE CASE OF:	  

		BOARD DATE:	  23 September 2014

		DOCKET NUMBER:  AR20140001612 


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 reconsideration of an earlier request to upgrade his general discharge to honorable.

2.  The applicant states, in effect:

	a.  he understands the Board decision, but the Board was misled and he references paragraph 5 of page 2 of Army Board for Correction of Military Records (ABCMR) Docket Number AR20130001346 (which is notification of the proposed discharge action).

	b.  information on his DD Form 214 (Report of Separation from Active Duty) is incorrect.  His DD Form 214 states under honorable conditions and if someone changed it or made a mistake then he should be treated differently because of being misled by the Army.

	c.  the Army knows that the discharge document issued to him on 8 August 1978 was an error and trying to change it to what they want does not make the error go away. 

3.  The applicant provides no new documentary evidence.





CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130001346, on 8 October 2013.

2.  The applicant's contentions are new evidence that will be considered by the Board.  It is noted in his original application, he indicated he was told his discharge would be changed to honorable after 2 years if he did not get into any trouble.

3.  The applicant enlisted in the Regular Army on 27 September 1977 and he held military occupational specialty 36K (Tactical Wire Operations Specialist).  

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 29 June 1978 for wrongfully possessing marijuana 
* 7 July 1978 for disobeying a lawful order by a commissioned officer

5.  On 2 August 1978, he was notified of his pending discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsuitability.  The commander cited the specific reasons were his apathetical approach, defective attitude, and his inability to expend time constructively toward his military duties.

6.  He acknowledged notification of the proposed discharge action.  He consulted with legal counsel and was advised of the basis for the contemplated separation action.  He acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further acknowledged he understood if he were issued an undesirable discharge under conditions other than honorable he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.  He waived consideration to have his case heard by a board of officers and declined to submit a statement in his own behalf.

7.  The separation authority subsequently approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, for unsuitability with the issuance of a General Discharge Certificate.  On 22 August 1978, he was discharged accordingly.


8.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 13-4c, with an under honorable conditions character of service and issuance of a DD Form 257A (General Discharge Certificate).  He completed 10 months and 26 days of total net active service.

9.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  It provided for the separation of individuals for unsuitability whose record 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.

	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.

11.  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 evidence of record supports the applicant's contention that his DD Form 214 states under honorable conditions.  His DD Form 214 shows his character of service is under honorable conditions (a general discharge).

2.  His contention he was told his discharge would be changed to honorable after 2 years if he did not get into any trouble was noted.  However, a discharge upgrade is not automatic.

3.  He contends the Board was misled and he references his notification of the proposed discharge action.  It is acknowledged his original case failed to mention he might receive a general discharge.  However, his notification warned him he could get either a discharge under other than honorable conditions or a general discharge.

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

5.  His brief record of service included two instances of NJP.  As a result, this record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

6.  In view of the foregoing, there is no basis for granting the applicant an honorable 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130001346, dated 8 October 2013.




      _______ _   ___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)                                         AR20140001612





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140001612



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1