IN THE CASE OF:	  

		BOARD DATE:	  9 October 2014

		DOCKET NUMBER:  AR20140003071 


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 upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states that approximately 3 months prior to his expiration term of service (ETS), he accepted a general, under honorable conditions discharge to attend college and play basketball.

   a.  He states he was young and acknowledges that he made some mistakes during his military service.

   b.  Subsequent to his discharge, he worked for the Federal government and served as Supervisor of Shipbuilding, Naval Aviation Depot, Naval Facilities Engineer Command.  He retired from Federal service after completing 28 years and 6 months of loyal service to his country.

3.  The applicant provides copies of a unit award, three letters, and his retirement certificate in support of his request.

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 28 November 1973 for a period of 3 years with a training option for military occupational specialty (MOS) 73C (Finance Specialist).  At the time he was 18 years of age.

3.  Upon completion of training he was awarded MOS 73C.  He was promoted to specialist four/pay grade E-4 on 28 December 1974.

4.  An Enlisted Efficiency Report, covering the period March 1974 through February 1975, shows for the six rated character traits the applicant received 
five "Outstanding" ratings and one "Excellent" rating.

5.  An Enlisted Evaluation Data Report, for the evaluation period August 1974, shows that the applicant achieved an MOS Evaluation Score of 96 and verified his proficiency in MOS 73C.

6.  An Enlisted Evaluation Data Report, for the evaluation period August 1975, shows the applicant achieved an MOS Evaluation Score of 40 and he did not verify his proficiency in MOS 73C.

7.  An Enlisted Evaluation Report, covering the period November 1975 through March 1976, shows the applicant received a total report score of 30 points (out of a possible total of 125 points).

8.  The applicant accepted nonjudicial punishment (NJP), as follows –

* on 19 September 1975, for being absent from his appointed place of duty (3 instances) and failing to obey a lawful order from a noncommissioned officer (2 instances)
* on 25 March 1976, for being absent from his appointed place of duty
* his punishment included (in both instances) reduction to the rank of private/pay grade E-2 and he did not appeal the NJP

9.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 1 July 1976, shows a Behavioral Science Specialist at the Mental Hygiene Consultation Division, Fort Carson, CO, evaluated the applicant at the commander's request.  She found the applicant fully alert and oriented, his mood unremarkable, thinking process clear, thought content normal, and his memory good.  She concluded that the applicant was mentally responsible for his behavior and could distinguish right from wrong.  It was her opinion that the applicant had the mental capacity to understand and participate in board proceedings.  Accordingly, she cleared the applicant for any administrative actions deemed appropriate by the command.

10.  The applicant underwent a separation medical examination on 1 July 1976.  The examining physician found the applicant qualified for administrative separation.

11.  On 23 July 1976, the applicant's commander notified the applicant of his intent to initiate separation action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 
5-37 (Expeditious Discharge Program (EDP)).

   a.  The reasons for his proposed action were the applicant's apathetic approach to his military duties and poor attitude toward his Army obligation.  He noted the applicant's production in his military duties and military appearance were below average.

   b.  The commander advised the applicant of his rights, the separation procedures involved, and that he was recommending that he be furnished a General Discharge Certificate.

12.  The applicant acknowledged he had been provided the opportunity to consult with a Judge Advocate General Corp’s officer concerning the basis for the contemplated separation action.

	a.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him.

   b.  He elected to submit a statement in his own behalf and he voluntarily accepted discharge from the U.S. Army.

	c.  The applicant and his counsel placed their signatures on the document.

   d.  The applicant submitted a statement in his own behalf.  He stated, in pertinent part, "I have developed an unfavorable attitude toward military life in almost all regards and feel it is time to get out."  He noted that he had proved early in his enlistment that he could succeed in the military and he provided 


examples.  He added, "The trouble that has occurred in my Army life has been in the last 9 months and has to be attributed to my complete reversal in attitude. Since I will never attain many of my goals in life while in the service, I feel an honorable discharge at this time will benefit the people I work for and around, as well as getting me started with the rest of my life."

13.  The commander forwarded the proposed separation action to the separation authority.

14.  The separation authority approved the recommended separation action and directed the applicant be issued a General Discharge Certificate.

15.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 2 August 1976 under the provisions of Army Regulation 635-200, paragraph 5-37, and his service was characterized as under honorable conditions.  He had completed 2 years, 8 months, and 5 days of active service.
He was authorized the National Defense Service Medal.

16.  A review of the applicant's military personnel records failed to reveal any evidence that his discharge was related to early separation to attend college.

17.  This review also failed to reveal that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations

18.  In support of his application the applicant provides the following documents:

   a.  Chief of Naval Operations, Meritorious Unit Commendation Citation, that shows Navy Region Southwest was cited for award of the Meritorious Unit Commendation for the period 1 August 1996 to 1 August 1999.

   b.  Certificate of Retirement, dated 28 September 2011, presented to the applicant by the Secretary of the Navy.
   
   c.  Letter from Jerry S------, Mayor of San Diego, dated 30 September 2011, that shows, on behalf of the citizens of San Diego, he congratulated the applicant on his retirement after 32 years of service with the United States government.

   d.  Letter from Captain, C.M. M----, Commanding Officer, Naval Facilities Engineering Command Southwest, San Diego, CA, dated 30 September 2011, that shows he expressed his appreciation to the applicant for 32 years of dedicated Federal service.

   e.  Letter from Mark K------, Operations Office, Naval Facilities Headquarters, dated 24 October 2011, that shows he expressed his gratitude and appreciation to the applicant for his career of dedicated service.
19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.

   a.  Chapter 5 (Separation for Convenience of the Government), paragraph
5-37, in effect at the time, provides for the separation of Soldiers under the EDP who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and/or failure to demonstrate promotion potential.  Members separated under the EDP could be awarded a character of service of honorable or general, under honorable conditions, as appropriate.

   b.  Chapter 3, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general, under honorable conditions discharge should be upgraded to an honorable discharge because he was young and made some mistakes during the last 9 months of his active duty service; however, he completed more than 28 years of loyal civil service in the Federal government.

2.  The applicant successfully completed training, was awarded MOS 73C, and he completed approximately 2 years of active duty service without a discreditable incident of record.  Thus, his contention that he was immature is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  There is no evidence of record that supports the applicant's contention that he was discharged prior to his ETS to attend college.

4.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 5-37, was accomplished in compliance with 


applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Considering all the facts of the case, the type of discharge directed and the reasons therefore were appropriate.

5.  The evidence of record shows the applicant's duty performance began to decline as early as August 1975 when he failed to demonstrate proficiency in his MOS.  He then received NJP on two separate occasions for six instances of indiscipline and he also received an unfavorable Enlisted Evaluation Report.

   a.  The evidence of record shows the applicant acknowledged that he could succeed in the military, but he had developed an unfavorable attitude toward military life.  Moreover, he expressed his desire to be discharged prior to fulfilling his active duty service obligation.

   b.  Thus, the applicant willingly and purposely chose to perform his military duties at a level that was unsatisfactory.  Therefore, despite the applicant's prior satisfactory service, his service during the entire period under review (emphasis added) did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge. 

6.  In view of the foregoing, there is no basis for granting the applicant's request.

7.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, his successful career of civil service with the Federal government is insufficient as a basis for upgrading his 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 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)                                         AR20140003071



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ABCMR Record of Proceedings (cont)                                         AR20140003071



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