IN THE CASE OF:	  

		BOARD DATE:	  3 March 2015

		DOCKET NUMBER:  AR20140011112 


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:

* his discharge should be changed because he was 3 months away from receiving an honorable discharge
* he got married and his wife was sick and she needed medical care

3.  The applicant provides no additional evidence.

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 18 November 1976 for 3 years.  He completed his training and was awarded military occupational specialty 12B (combat engineer).

3.  Between June 1977 and September 1978, nonjudicial punishment (NJP) was imposed against him on four occasions for:

* failing to obey a lawful order
* failing to repair (two specifications)
* disobeying a lawful order

4.  He was counseled on numerous occasions for:

* disobeying lawful orders
* failing to repair
* suspension of Article 15
* barracks violation
* improper uniform
* lying
* bar to reenlistment
* personal appearance
* unshaven in formation and poor uniform
* sleeping in class
* leaving valuables unsecured

5.  On 23 May 1979, he was notified of his pending discharge for unsuitability under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, due to apathy, defective attitudes, or inability to expend effort constructively.  His unit commander cited the applicant's demonstrated apathetic attitude toward military discipline as well as duty performance.  It was also noted he had been counseled on 20 occasions.

6.  On 24 May 1979, he underwent a mental status evaluation and no severe psychiatric disorder was noted.  He was found psychiatrically cleared for administrative action deemed appropriate by his command.

7.  On 31 May 1979, he consulted with legal counsel and was advised of the basis for the contemplated separation action.  He acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further acknowledged he understood if he were issued an undesirable discharge under conditions other than honorable he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.  He waived consideration to have his case heard by a board of officers and declined to submit a statement in his own behalf.

8.  On 8 June 1979, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, for unsuitability with the issuance of a General Discharge Certificate.  On 25 June 1979, he was discharged accordingly.

9.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 13-4c, with an under honorable conditions character of service and issuance of a DD Form 257A (General Discharge Certificate).  He completed 2 years, 7 months, and 8 days of total net active service.

10.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  It 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 3-7a 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.  Although the applicant contends his general discharge should be changed because he was 3 months away from receiving an honorable discharge, his record of service included 20 adverse counseling statements and 4 NJPs.  As a result, this record of service did not meet the standards of acceptable conduct and performance of duty for a fully honorable discharge.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

3.  In view of the foregoing, there is no basis for granting the applicant 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 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)                                         AR20140011112



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ABCMR Record of Proceedings (cont)                                         AR20140011112



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