IN THE CASE OF:
BOARD DATE: 19 May 2015
DOCKET NUMBER: AR20140014981
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 an honorable discharge.
2. He states that he was told his discharge would be upgraded to honorable if he did not get into any trouble for 6 months.
3. He 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 25 July 1977.
3. His record shows he:
a. accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on:
* 4 November 1977, for possession of one ounce, more or less, of marijuana
* 26 April 1978, for dereliction in the performance of his duties
b. was absent without leave (AWOL) from 14 to 27 August 1978.
4. On an unknown date, the commander notified the applicant of his intention to separate him from the service for unsuitability under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 13.
5. On 11 September 1978, he acknowledged he had been advised by counsel of the basis for the contemplated action to separate him for unsuitability. He waived consideration of his case by and a personal appearance before a board of officers, elected not to submit statements in his own behalf, and waived his right to counsel. He indicated he understood he could expect to encounter substantial prejudice in civilian life if he was issued a general discharge.
6. A Report of Mental Status Evaluation, dated 15 September 1978, shows that he was psychiatrically cleared for any administrative action deemed necessary by his command.
7. On 21 September 1978, his commander subsequently recommended that the applicant be eliminated from the service due to unsuitability. The commander cited the applicant's failure to obey orders and his constant attempts to get out of the Army. The commander requested waiver of the requirement of rehabilitation because the applicant had resisted all attempts to be rehabilitated.
8. On 3 October 1978, the appropriate authority approved the recommendation and directed that he be issued a General Discharge.
9. Accordingly, he was discharged under honorable conditions on 13 October 1978. He completed a total of 1 year, 2 days, and 6 months of creditable active military service and had 14 days of time lost due to AWOL.
10. There is no indication in his records that 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:
a. Chapter 13, applied to separation for unfitness and unsuitability. At that time, paragraph 13 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 a General Discharge Certificate was normally issued.
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 members service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
DISCUSSION AND CONCLUSIONS:
1. The available evidence shows his separation processing was accomplished in accordance with the applicable regulation. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
2. His record reveals a disciplinary history that includes his acceptance of NJP on two separate occasions and being AWOL for 14 days. This record of misconduct clearly diminished the overall quality of his service below that warranting the issuance of an honorable discharge. Therefore, it would not be appropriate to upgrade his discharge.
3. The U.S. Army has never had a policy where a discharge was automatically upgraded. Every case is individually decided based upon its merits when an applicant requests a change in his or her 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 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) AR20140014981
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ABCMR Record of Proceedings (cont) AR20140014981
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