IN THE CASE OF:    

		BOARD DATE:  2 December 2014	  

		DOCKET NUMBER:  AR20140005394 


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 general discharge to honorable.

2.  The applicant states, in effect:

* he was having family/marital problems
* he had two children to support
* an Army friend hit him in the head with a pool stick
* he had a car accident days before his discharge which caused him problems
* he had a head injury before his discharge 

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 23 January 1976 for 3 years.  He completed his training and was awarded military occupational specialty 16D (Hawk Missile Crewman).

3.  Records show he was absent without leave (AWOL) from 8 July 1977 through 18 July 1977 (11 days).

4.  His discharge proceedings indicate he was counseled 12 times.

5.  On 28 June 1977, he was notified of his pending separation for failure to maintain acceptable standards for retention under the Expeditious Discharge Program under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37.  The unit commander cited:

	a.  the applicant's irresponsible and apathetic attitude toward both his duties and the military service;

	b.  he has shown no favorable response to frequent counseling by his superiors to improve his soldierly duties and personal problems within his unit; and

	c.  he demonstrated a gross lack of motivation, self-discipline, and an inability to adapt socially or emotionally to existing conditions.

6.  On 30 June 1977, he acknowledged notification of his proposed discharge, voluntarily consented to the separation, and elected not to make a statement on his behalf.  He also acknowledged he might expect to encounter substantial prejudice in civilian life if issued a general discharge and he had been provided an opportunity to consult with counsel.  He voluntarily consented to the discharge.

7.  On 19 July 1977, the separation authority approved the recommendation for separation and directed that he be furnished a general discharge.

8.  He was accordingly discharged on 29 August 1977 under the provisions of Army Regulation 635-200, paragraph 5-37, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  He completed 1 year, 5 months, and 26 days of total active service.

9.  There is no evidence of record which shows he was diagnosed with any medical condition prior to his discharge.

10.  There is no evidence in the available records that shows he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Paragraph 5-37, in effect at the time, provided for the discharge of enlisted personnel who had completed at least 6 months but less than 36 months of active duty and who had demonstrated they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this provision of the regulation were issued an honorable or a general discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was having family/marital problems; however, family/marital problems alone are normally not a basis for upgrading a discharge.

2.  His contentions that he was hit in the head with a pool stick, he was in a car accident days before his discharge that caused him problems, and he had a head injury before his discharge were considered.  However, there is no evidence of record and he provided no evidence that shows he was diagnosed with any medical condition prior to his discharge.

3.  His record of service included adverse counseling statements and an 11-day AWOL period.  As a result, his record of service was insufficiently meritorious to warrant an honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  In addition, he voluntarily consented to the discharge.

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

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

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 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)                                         AR20140005394



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ABCMR Record of Proceedings (cont)                                         AR20140005394



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