IN THE CASE OF:  

		BOARD DATE:  23 October 2014	  

		DOCKET NUMBER:  AR20140004003 


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 (GD) be upgraded.

2.  The applicant states he was discharged due to his wife's health problems and was told that his GD would automatically be upgraded after a year.  He admits to being young and foolish and accepts that he did not perform to appropriate standards.  His wife died after three years of hospitalization and treatment leaving him, at age 21, with experiences that most men do not face until their 50's.  He remarried but lost his second wife of 12 years to cancer two years ago.  He is currently working with troubled youths in hospital and rehabilitation settings and knows he is not the troubled, immature youth he was while serving on active duty.   

3.  The applicant provides copies of a DD Form 4 (Enlistment/Reenlistment Agreement), DA Form 428 (Application for Identification Card), DA Form 2627 (Record of Proceedings Under Article 15 Uniform Code of Military Justice (UCMJ)), DA Form 2-1 (Personnel Qualification Record Part II), DA Form 664 (Service Member's Statement Concerning Application for the Veterans Administration), discharge order, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a letter of support.

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 9 August 1978, completed training, and was awarded the military occupational specialty 95B (Military Police).

3.  On 24 September 1979, while serving in Korea, a special court-martial found the applicant guilty of disrespectful language toward a commissioned officer, destruction of government property, and wrongful possession of government property.  His sentence was reduction to pay grade E-1, forfeiture of $270.00 per month for two months, to perform hard labor without confinement for two months, and restriction to the company area for two months.  The court-martial convening authority approved the findings but reduced forfeiture portion of the sentence to $200.00 per month for two months.

4.  On 31 October 1979, the applicant received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for breaking restriction.

5.  A 15 April 1980 Disposition Form shows the applicant self-enrolled in the Alcohol and Drug Abuse Prevention and Control Program on 27 September 1979.  On 10 January 1980, he indicated he did not wish to continue in the program as his drinking was under control and he wanted to be discharged.  His command insisted he continue in the program which he did, attending two additional weekly sessions.  He missed the next session, then took 3 weeks leave.  On 17 March 1980, he was placed in an inactive status.  It was determined that although the applicant did not give the program his maximum effort he was not seen as a rehabilitation failure.

6.  A counseling statement noted that the applicant's behavior was not acceptable and the applicant expressed a desire to be discharged.  His wife, whom he had refused to list as a dependent, was seriously ill and hospitalized in the intensive care unit.  He did not wish any assistance in paying her medical bills.  He was not amenable to rehabilitative efforts.


7.  On 16 April 1980, the applicant was referred to mental health for moodiness, depression, and antisocial, bizarre behavior.  The applicant stated his chief complaint was that he didn't want to remain in the military.  He had been humiliated in Korea and felt he could be of no further use to the Army.  He was not willing to enter into therapy or make any behavioral changes.

8.  On 18 April 1980, his command initiated separation action under the provisions of paragraph 5-31, Army Regulation 635-200 for failure to maintain acceptable standards for retention.  The applicant acknowledged the separation action and voluntarily consented to the discharge.

9.  On 21 April 1980, the separation authority directed the applicant be discharged with a GD Certificate within 3 days.

10.  The applicant was discharged with a GD on 25 April 1980.  He completed 1 year, 8 months, and 17 days of creditable service with no time lost.  He is not shown to have received any personal awards, decorations, commendations, citations, or recommendations.

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

12.  In his letter of reference, the author states the applicant is his subordinate at a youth addiction treatment center.  The applicant provides the intake and orientation process for court-referred youths.  He states it is a pleasure to work with the applicant, he reports to work on time, helps his fellow team members on shift, and demonstrates accuracy and thoroughness in his job performance.  He is a very reliable member of the team.

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

	a.  Chapter 5, then in effect, set forth the conditions under which enlisted personnel could be discharged, released from active duty or active duty for training, or released from military control, for the convenience of the Government.  Paragraph 5-31 provided the policies and procedures for separating enlisted personnel under the Army's Expeditious Discharge Program.



	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2.  There is no merit to the applicant's contention that he was told that his discharge would be automatically upgraded at some point after his discharge.  There is not now nor has there ever been any provision in law or regulation that allowed for an automatic upgrade of any less than honorable discharge based solely on a period of lapsed time post-service.

3.  The applicant's record of service shows that he displayed an inability to adjust to the regimentation of military life as reflected by his history of disciplinary infractions.  Based on his record of misconduct, the applicant's service clearly does not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, the applicant's service does not meet the standard for 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 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)                                         AR20140004003



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ABCMR Record of Proceedings (cont)                                         AR20140004003



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