IN THE CASE OF:  

		BOARD DATE: 3 December 2014

		DOCKET NUMBER:  AR20140007035 


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 correction of his military records to show he was discharged with an honorable characterization of service.

2.  The applicant states he served in the Regular Army from 1974 to 1976.  He is now of retirement age and wants to apply his military time to his civilian retirement.  In order to do this, he must have an honorable characterization of service.  The reason it does not read as honorable is because under the Carter Administration, the President was downsizing the military and he was offered a general discharge under honorable conditions.  He was assured he would receive the same benefits as anyone else who served during peace time.

3.  The applicant provides copies of:

* DD Form 214 (Report of Separation from Active Duty)
* Certificate, Highway Watch, West Virginia Department of Highways, dated 29 April 2005
* Statement by the State Highway Engineer, undated
* Letter of appreciation from the Maintenance Engineer, Division of Highways, West Virginia, dated 11 December 2012
* Letter of commendation from the District Engineer Manager, division of Highways, West Virginia, dated 4 January 2013
* Letter from the Consolidated Public Retirement Board, dated 18 February 2014
* Letter of support from a friend of the applicant, dated 27 March 2014
* Letter of support from the Assistant Maintenance Engineer, dated 7 April 2014
* Character reference letter dated 11 April 2014

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.  On 24 June 1974, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 57H (Terminal Operations Specialist).

3.  On 13 June 1975, the applicant accepted nonjudicial punishment (NJP) for failing to go at the time prescribed to his appointed place of duty.

4.  On 8 July 1976, the applicant underwent a mental status evaluation.  The applicant's behavior was found to be normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right and capable of participating in the separation processing.

5.  On 31 August 1976, the applicant accepted NJP for being absent without authority during 28 to 31 August 1976.

6.  On 2 September 1976, the applicant's commander notified him that he was initiating action to discharge him from the military service under the provisions of Army Regulation 635-200, paragraph 5-37 (Expeditious Discharge Program).  The commander cited the applicant's substandard performance, lack of cooperation with peers or superiors, inability to be present for duty or to complete a task and inability to accept instructions or directions as the basis for his action.  The commander stated he was intending to recommend he receive a general, under honorable characterization of service.
7.  On 2 September 1976, the applicant was given legal counseling and consented to the proposed separation action.

8.  On 2 September 1976, the applicant's commander recommended he receive a general, under honorable conditions characterization of service and forwarded the action to the battalion commander.

9.  On 7 September 1976, the appropriate separation authority approved the recommendation for discharge and directed the applicant be issued a DD Form 257A (General Discharge Certificate).

10.  On 10 September 1976, the applicant was discharged under honorable conditions.  He had completed 2 years, 2 months and 14 days of total activeservice.

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

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

	a.  Paragraph 5-37 of the regulation 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 that 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.

	b.  No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either a general or honorable discharge.

13.  The supporting documentation provided by the applicant shows that he had completed the West Virginia Highway Watch Driver program and received letters of appreciation and commendation from highway engineers for his job performance. He also has provided two letters, one from a long-time friend and another from an assistant maintenance engineer, both attesting to the applicant's good character.  He is a model citizen who donates his free time to community events and spends time with his family.  He is a dependable and valuable employee who performed his duties in a professional manner.
14.  The applicant also provided a letter from the Consolidated Public Retirement Board wherein he was informed that pursuant to the provisions of West Virginia law, any member of the retirement system who has previously served in the Armed Forces of the United States during any period of compulsory military service or during a period of armed conflict shall receive credit for the time spent in the military service, not to exceed 5 years if honorably discharged.  The letter further states that the applicant's "under honorable conditions" discharge makes him ineligible for this credit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he is now of retirement age and wants to apply his military time to his civilian retirement.  He argues that he was offered a general discharge under honorable conditions and was assured he would receive the same benefits as anyone else who served during peacetime.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

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

4.  Based on his record of indiscipline, the applicant's characterization under honorable conditions appears to be an accurate reflection of service.

5.  The applicant's post-service quality of employment and letters of support have been considered.  However, they are not sufficiently mitigating to warrant an upgrade of his discharge to fully honorable.

6.  The applicant's desire to obtain civilian credit for his time spent in the U.S. Army is understandable.  However, this desire is not a sufficient or justifiable basis for upgrading his discharge.

7.  There is no error or injustice in the applicant's case.

8.  In view of the above, the applicant's request should be denied.



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)                                         AR20130007681



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007035



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1