BOARD DATE:	  9 April 2015

		DOCKET NUMBER:  AR20140015134 


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 his general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states he believes the services he provided during his enlistment were excellent and he should have received an honorable discharge.

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 10 May 1977.  He completed basic training and on 17 August 1977 he was assigned for advanced individual training (AIT) to Fort Sam Houston, TX.  He repeatedly failed crucial exercises of his AIT course and on 15 September 1977 he was dropped from his AIT class as an academic failure. 

3.  On 20 October 1977, he was assigned for AIT to the 3rd Training Battalion, Fort Gordon, GA. 

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) as follows on:

* 31 October 1977, for willfully disobeying a lawful order
* 23 November 1977, for being derelict in the performance of his duties by having to be woken up twice and for being derelict in the performance of his duties by not preparing for an inspection

5.  Between 22 and 29 November 1977, he was frequently counseled by members of his chain of command for his attitude, not putting forth the effort required, failing asleep in class, failing to follow instructions, and for deliberately failing tests so he could get out of AIT for the military training specialty he was being trained for.

6.  On 30 November 1977, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 13 for unsuitability.  His commander stated he was recommending him for a general discharge. 

7.  On 30 November 1977, he acknowledged receipt of the notification of his proposed discharge action.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, of the procedures and rights available to him, and the possible effects of a general discharge.  He declined to submit a statement in his own behalf.

8.  On 7 December 1977, his senior commander recommended approval of the discharge action. 

9.  On 7 December 1977, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a General Discharge Certificate.  On 9 December 1977, he was discharged accordingly.


10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsuitability with an under honorable conditions characterization of service.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time set forth the basic authority, established the policy, and prescribed the procedures for separating members for unsuitability (apathy, defective attitude and inability to expend effort constructively).  Members separating under this provision of the regulation could receive either an honorable or a general discharge.  

13.  Army Regulation 635-200, 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.  The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received for disobeying a lawful order and being derelict in the performance of his duties, and the numerous times he was counseled for his poor performance and attitude.  Accordingly, his immediate commander initiated separation action against him.

2.  His 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 reason for separation were therefore appropriate considering all the facts of the case.

3.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to 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 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)                                         AR20140015134





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ABCMR Record of Proceedings (cont)                                         AR20140015134



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