IN THE CASE OF:	  

		BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20140016008 


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 upgrade of his general discharge to an honorable discharge or change to a medical disability discharge.

2.  The applicant states he should have been processed for medical evaluation. He thinks he may have been entitled to disability benefits or should have received some other type discharge.  He discharge has negatively affected his life.  When he was discharged Lieutenant James D. C____ promised him that his discharge would be honorable.

3.  The applicant provides a copy of his 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 enlisted on 16 March 1976 and never completed training.  He was enrolled in training as a missile crewman but was dropped because of denial of a security clearance.  

3.  He received non-judicial punishment (NJP) on five occasions as follows – 

* 12 May 1976 for sleeping on his post 
* 13 May 1976 for possession of marijuana
* 07 July 1976 for possession of marijuana
* 10 November for assaulting a fellow Soldier
* 02 December for possession of marijuana and toluene, a prohibited volatile substance (that he was apparently “sniffing”) 

4.  He was also counseled on several occasions about his behavior and attitude. 

5.  At a 19 November 1976 mental status evaluation the applicant’s displayed passive-aggressive behavior.  He was fully alert and oriented and exhibited a normal mood.  His thinking was clear, his thought content normal and his memory good.  There were no signs of mental illness; he was mentally responsible, able to tell right from wrong and to adhere to the right.  He had the capacity to understand and participate in board proceedings and he met retention standards.  He was cleared for such administrative action as the command deemed appropriate.

6.  The applicant was notified about initiated separation action.  The applicant consulted with counsel and was advised of the reasons for separation and the options available to him.  The applicant acknowledged the notification and voluntarily consented to the separation.  He waived his right to submit a statement in his own behalf.  He acknowledged that he could expect to encounter substantial prejudice in civilian if he received a general discharge.  He indicated that he could withdraw his voluntarily consent up until the discharge authority took action and that if he did decline the discharge he could be processes for separation under other provisions of law and regulation.

7.  The company commander recommended elimination and the separation authority directed a General Discharge Certificate be issued.     

8.  Separated on 4 January 1977 with a general discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), paragraph 5-37.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 5-37 of the regulation 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 that 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 regulation were issued either a general or honorable discharge.
   
   b.  Paragraph 3-7a states 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 states 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant submitted no evidence to substantiate that he was told he would receive an honorable discharge and provided no indication as to why he believes he should received a medical disability processing.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of the request.

5.  In view of the foregoing there is no basis for granting the applicant's requested relief.


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)                                         AR20140016008





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ABCMR Record of Proceedings (cont)                                         AR20140016008



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