IN THE CASE OF:	  

		BOARD DATE:	  19 March 2015

		DOCKET NUMBER:  AR20140013510 


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 was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action.

 3.  The applicant provides:

* letter of apology
* five character-reference letters
* 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 was born on 22 September 1954.  He enlisted in the U.S. Army Reserve (USAR) on 6 November 1974 for 6 years.  He was ordered to active duty for training on 5 June 1975 and he was released from active duty on 4 October 1975.  He was awarded military occupational specialty 44C (welder).

3.  On 13 July 1976, he was ordered to active duty for 20 months due to unexcused absences from unit training assemblies.

4.  He was counseled for:

* failing to repair (nine times)
* being absent without leave (AWOL)
* possess marijuana
* excessive lateness
* attitude (two times)

5.  Between December 1976 and June 1977, nonjudicial punishment (NJP) was imposed against him on three occasions for:

* being AWOL from 6 to 7 December 1976
* possessing marijuana and failing to repair
* failing to repair

6.  On 29 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 continued lack of self-discipline as evidenced by his repeated failures to repair,

	b.  his apparent lack of motivation and poor attitude reflected by poor job performance,

	c.  his failure to demonstrate promotion potential as demonstrated in his overall performance, and

	d.  his inability to accept directions.

7.  On 30 June 1977, he acknowledged notification of his proposed discharge and he voluntarily consented to the discharge.  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 also elected to make a statement on his own behalf.  He stated:

* he felt his attitude and motivation toward the service was due to the atmosphere and environment at Fort Hunter Liggett
* he accepted orders to a degree
* he conducted himself in a very good military manner until someone or something tried to take his motivation 
* discipline was one of his main reasons for coming into the military 

8.  On 3 August 1977, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

9.  He was accordingly discharged on 12 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 a total of 1 year, 4 months, and 27 days of total active service with 3 days of lost time.

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.  He provided a letter of apology, dated 22 June 2014, which states:

	a.  During a training exercise he made a terrible mistake by discharging his weapon without authorization (not live rounds).  He is deeply sorry for this infraction and thankful no one was hurt.

	b.  He did receive an Article 15 and never had any further issues of that sort.

	c.  He was an adolescent at the time and his emotions and actions were not fully developed.

12.  He provided character-reference letters from a psychologist, employer/manager, friends and coworkers who attest:

	a.  The applicant faithfully attends a support group at the Atlanta Veterans Administration Medical Center.  He makes good contributions to the group, offering support and assistance to other veterans.  He appears to be a man of good character.

	b.  The applicant has been a dedicated employee since 1999.  He performs in an outstanding manner with eagerness to assist the veteran population in which he serves.  His actions demonstrate a positive and caring attitude at all times.  He shows respect, honor, and discipline when communicating with those in leadership positions, fellow veterans, and coworkers.  His behavior is of gratitude and humility which reflects in the care he provides to veterans.   He performs well as a team with coworkers often going the extra mile in helping others.  He demonstrates as a leader and mentor to coworkers and fellow veterans.  His actions are always a demonstration of honor, dedication, loyalty, accuracy, and dependability.

	c.  The applicant has a very solid foundation spiritually and socially.  He has proven that standing up for the kind of values that promote honesty, integrity, and humility is central to his character and beliefs.  He is well respected and his thoughts and ideas are sought by his friends and family members.

	d.  It has been the applicant's lifelong goal to strive for attentiveness, understanding patience, and a righteous life.  He has truly prayed his way (transformed) to being a righteous man.

	e.  The applicant has great character and is always diligent while caring for fellow veterans.  He is respected and is dependable and reliable.

13.  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 an adolescent at the time.  However, age is not a sufficiently mitigating factor.  He was 20 years old when he enlisted in the USAR and he completed his training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

2.  The character-reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

3.  The evidence of record does not support his contention that his discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action.  His record of service included numerous adverse counseling statements, three NJPs, and 3 days of lost time.  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.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

5.  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)                                         AR20140013510



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ABCMR Record of Proceedings (cont)                                         AR20140013510



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