IN THE CASE OF:	  

		BOARD DATE:	  1 October 2014

		DOCKET NUMBER:  AR20140003548 


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 other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states:

* he recognizes the errors of his ways when he was younger
* he has been a good citizen and does not use alcohol or any kind of abusive substances that might impair his faculties
* his actions today are honorable 
* his discharge should be upgraded so he can obtain medical health benefits and burial rites

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty)
* a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), which contains a supporting statement

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 was born on 6 March 1953 and enlisted in the Regular Army on 30 March 1973 at the age of 20 years.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four occasions for the following offenses:

* failure to go at the prescribed time to his appointed place of duty
* being absent without leave (AWOL) during the periods:

* 16 to 17 August 1974
* 30 September to 1 October 1974
* 17 to 22 October 1974
* 29 to 31 October 1974 

4.  Special Court-Martial Order Number 32, issued by Headquarters, 3rd Brigade, 1st Armored Division on 13 April 1975, shows he was, on 14 March 1975, found guilty of one specification of possession of heroin.

5.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 18 April 1975, which shows he had a normal evaluation.  The examining physician also found he had the mental capacity to understand and participate in the discharge proceedings.

6.  On 29 April 1975, his unit commander recommended he be discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5 (Unfitness), by reason of misconduct, for frequent acts of a discreditable nature.

7.  On the same date, having been advised by consulting counsel, he acknowledged the fact that he had been counseled regarding the basis for the contemplated separation action, its effects, and the rights available to him.  He was also informed that if he was issued a general discharge, he could expect to encounter substantial prejudice in civilian life.  He submitted a statement in his own behalf, wherein he expressed that he believes he was being treated unfairly due to a personality conflict between him and his supervisor.
8.  On 8 May 1975, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 13.  The separation authority directed that he be reduced to the lowest enlisted grade and that he be issued a discharge under other than honorable conditions.

9.  On 9 May 1975, he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1), by reason of unfitness with an under other than honorable conditions discharge.  He had completed 1 year, 11 months, and 4 days of creditable active service and had 66 days of lost time.

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

11.  His DD Form 293 shows he submitted a supporting statement from his employer who indicates he had worked with him for years and he was dependable, honest, and trustworthy.

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

	a.  At that time, chapter 13 applied to separation for unfitness and unsuitability.  Paragraph 13-5 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 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
   
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was recommended for separation under the provisions of Army Regulation 635-200, paragraph 13-5a(1), for unfitness with an under other than honorable conditions discharge.  

2.  His record shows he was convicted by a special court-martial, he accepted nonjudicial punishment on four occasions, and he accrued 66 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

3.  His record shows he was 21 years of age at the time of his offenses; however, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service.  There is no evidence he was suffering from any mental condition at the time.

4.  His post-service conduct is commendable; however, it has no bearing on his behavior during his active duty service.

5.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for benefits.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.  

6.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20140003548





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ABCMR Record of Proceedings (cont)                                         AR20140003548



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