IN THE CASE OF:  	  

		BOARD DATE:  28 April 2015	  

		DOCKET NUMBER:  AR20140015196 


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 undesirable discharge.

2.  The applicant states:

* his DD Form 214 (Report of Separation from Active Duty) shows his character of service as under other than honorable conditions
* he was told he was being discharged under "chapter 17" and his discharge would be changed to honorable in 30 days

3.  The applicant provides:

* DD Form 214
* DD Form 293 (Application for the Review of Discharge or Dismissal 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.  The applicant enlisted in the Regular Army on 9 August 1974 for 3 years.  He completed his training and was awarded military occupational specialty 11D (armor reconnaissance specialist).

3.  On 9 May 1975, he was convicted by a summary court-martial of being absent without leave (AWOL) from 12 April 1975 to 13 April 1975 and disobeying a lawful order.  He was sentenced to forfeiture of $50.00 pay for 1 month, restriction for 30 days, and extra duty for 15 days.  On 12 May 1975, the convening authority approved the sentence.

4.  On 11 August 1975, he was convicted by a special court-martial of being AWOL from 26 June to 21 July 1975.  He was sentenced to reduction to pay grade E-1, hard labor without confinement for 45 days, restriction for 45 days, and a forfeiture of $50.00 pay for 2 months.  On 22 August 1975, the convening authority approved the sentence.

5.  On 19 August 1975, nonjudicial punishment was imposed against him for wrongfully appropriating a military vehicle.

6.  He was counseled for:

* attitude and personal appearance
* not following profile instructions
* being AWOL and duty performance
* drinking during duty hours
* appearance in muster inspection and attitude
* negative attitude

7.  On 24 October 1975, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unfitness due to an established pattern for shirking.  His unit commander cited:

* his negative attitude towards leadership and the military in general
* his conviction to get out of the Army at any cost to himself
* he has been counseled on six occasions 

8.  On 28 October 1975, after consulting with counsel and being advised of the recommended separation for misconduct, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

9.  The separation authority approved the recommendation for separation and directed the issuance of an Undesirable Discharge Certificate.

10.  On 16 December 1975, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(4), for unfitness due to an established pattern for shirking.  He was issued an Undesirable Discharge Certificate.  He completed 1 year, 3 months, and 10 days of total active service with 28 days of lost time.

11.  There is no evidence that shows 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 basic authority for separation of enlisted personnel.

	a.  Chapter 13, paragraph 13-5a(4), in effect at the time, provided for discharge due to unfitness for an established pattern of shirking.

	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.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

13.  The U.S. Army has never had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines the character of service or the reason for discharge, or both, was improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was told his discharge would be changed to honorable in 30 days.  However, a discharge upgrade is not automatic.

2.  His record of service included one NJP, one summary court-martial conviction, one special court-martial conviction, and 28 days of time lost.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

4.  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 to upgrade his 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)                                         AR20140015196



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ABCMR Record of Proceedings (cont)                                         AR20140015196



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