IN THE CASE OF:  	 

		BOARD DATE:  	  21 April 2015

		DOCKET NUMBER:  AR20140014430 


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 (GD) to an honorable discharge (HD).

2.  The applicant states: 

   a.  He would like a characterization upgrade to an HD.  He is not looking for any benefits but wants what he feels he has earned.  He was told at the time of his separation hearing that his GD would change to an HD after 6 months.
   
   b.  He served honorably and has an Army Good Conduct Medal (AGCM).  He came from a military family who served honorably.  When his father was sick, he became the sole supporter at home.  He was only 19 years old and was worried about his mother and his wife, so he begged his command for a few months off or temporary duty close to home.  They refused and told him they wanted him out of the Army.  The applicant states his family circumstances were evident but he was not given a choice by his commanding officer.
   
   c.  Additionally, he states his commanding officer held a grudge toward him when he refused to speak to him in Spanish.
   
   d.  He is a law abiding citizen, but his commanding officer forced him to sign papers stating that he was ashamed to wear the Army uniform and he believes that was illegal.  He had a clean record so the only thing his command could do was to demote and separate him.
   
   
3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 23 August 1978, the applicant enlisted in the Regular Army (RA).  After completing initial entry training, he was awarded military occupational specialty (MOS) 17C (Field Artillery Target Acquisition Specialist).

3.  On 25 February 1981, he was honorably discharged to immediately reenlist in the RA.  

4.  In March 1982, the applicant was absent without leave (AWOL).  When he returned, his command only initially counseled him by providing him information that could enable him to be close to his family to handle his personal affairs.  However, he continued to go AWOL. 

5.  He was counseled regarding his conduct on:

* 12 March 1982 – for being AWOL
* 31 March 1982 – for being AWOL

6.  On 31 March 1982, pursuant to Article 15, Uniform Code of Military Justice (UCMJ), the applicant received nonjudicial punishment (NJP) for three specifications of being absent without leave (AWOL) for a total of 17 days.

7.  On 7 April 1982, his commanding officer advised him that he was being considered for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for unsuitability and advised him of his rights.

8.  On 7 April 1982, the applicant waived his right to consult with counsel, consideration of his case by a board of officers, a personal appearance before a board, and to submit statements on his behalf. 

9.  On 9 April 1982, the applicant received a psychiatric evaluation at the Fort Gordon Community Mental Health Activity and was psychiatrically cleared for separation under Army Regulation 635-200, chapter 13.

10.  On 26 April 1982, the separation authority approved the command's request for the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a GD.  Therefore, on 29 April 1982, the applicant was discharged with a GD due to unsuitability, apathy, defective attitudes or inability to expend effort constructively.

11.  There is no indication 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 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  

	a.  Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.  Separation under this chapter requires commanders to establish that a Soldier meets medical retention standards.

	b.  Paragraph 3-7a provides that an HD 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.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  The applicant states he had family issues and requested time off but it was denied.  Although unfortunate, he had an obligation to the military.  In addition, his command tried to offer possible solutions to his problems by having him request to be stationed closer to his family, but he refused and continued to go AWOL.  

3.  He states he feels he was misled with regard to his separation.  He implies that his discharge would be automatically upgraded within 6 months, that he was forced to sign papers stating that he was ashamed to wear the Army uniform, and that his commanding officer held a grudge over him since he would not speak Spanish to him.  However, there is no evidence to support his statements.  The record shows he was advised by counsel of the basis for his separation and its effects, the rights available to him, and the effect of a waiver of his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 

4.  The applicant states his performance was honorable and should be granted an HD.  However, subsequent to his reenlistment he was counseled numerous times for his conduct, and he received NJP for three specifications of being AWOL.  The evidence fully supports his chain of command's determination that his conduct warranted his discharge.

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD.

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)                                         AR20140001770



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ABCMR Record of Proceedings (cont)                                         AR20140014430


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