IN THE CASE OF:	  

		BOARD DATE:	  9 July 2015

		DOCKET NUMBER:  AR20140018828 


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 honorable and amendment of his narrative reason for separation to hardship.

2.  The applicant states:

	a.  He enlisted in 1981 at age 18 and he was released in 1982 with a general discharge.

	b.  He had never been away from home.  After he completed his training, he was assigned to Fort Sill, OK.  About a week before his departure date he was told his orders had changed and he would be going to Germany instead.  This was very disappointing to him and his family.  He was raised by his grandparents because his parents were drug addicts.  In August 1982, his uncle died and he was not allowed to attend his funeral.  This was very traumatic for him.

	c.  After his commander refused to let him attend his uncle's funeral, the captain tried to make his life in the military miserable.  His attitude and mental status changed after that.  All he wanted was be there for his grandparents to support them.  He helped them financially.

	d.  He took the "chapter" under duress.  There was no one to talk to.  He believes he would not have chosen the option to leave the military with a general discharge if he had been allowed to attend his uncle's funeral.

	e.  Had he been older and known better, he would not have accepted the administrative discharge.  He would have sought legal assistance.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* U.S. Army Reserve (USAR) discharge orders

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 was born on 27 August 1963.  He enlisted in the USAR on 9 July 1981 at nearly 18 years of age for a period of 6 years under the Delayed Entry Program (DEP).  He was discharged from the USAR DEP on 2 November 1981 for immediate enlistment in the Regular Army.  He enlisted in the Regular Army on 3 November 1981 at 18 years of age for a period of 3 years.

3.  In 1982, nonjudicial punishment (NJP) was imposed against him for failing to obey a lawful order.

4.  In September 1982, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty.

5.  He was counseled for:

* failing to report for duty (numerous times)
* failing to follow instructions
* disobeying a lawful order
* substandard appearance
* being absent from his place of duty
* failing to shave

6.  On 29 September 1982, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program).  His unit commander cited the following reasons for the proposed action:

* the applicant's obvious inability to adapt to the military way of life
* the applicant's inability to keep himself properly shaven – he rarely bathes and does not keep his uniforms clean or wear them properly
* the applicant is often absent from his place of duty
* the applicant has an entirely different concept of neatness, cleanliness, and order
* the applicant's NJP for being absent from his place of duty

7.  On 29 September 1982, he acknowledged:

* notification of his proposed separation under the provisions of Army Regulation 635-200, paragraph 5-31, and elected not to make a statement in his own behalf
* he might encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued
* he was provided the opportunity to consult with an officer of the Judge Advocate General Corps

8.  On 30 September 1982, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

9.  On 15 October 1982, he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He completed 11 months and 13 days of creditable active service.

10.  His DD Form 214 shows in:

* item 25 (Separation Authority) – Army Regulation 635-200, Chapter 13
* item 26 (Separation Code) – LHJ (LMJ)
* item 28 (Narrative Reason for Separation) – Unsatisfactory Performance

11.  There is no evidence of record showing he applied for a hardship discharge.

12.  He was discharged from the USAR effective 2 November 1987 and issued a General Discharge Certificate.

13.  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.

14.  Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel.

	a.  Chapter 3 provides that an honorable discharge is a separation with honor and entitled 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.

	b.  Chapter 5, in effect at the time, provided for separation for the convenience of the government under the Expeditious Discharge Program of members who demonstrated they could not or would not meet acceptable standards required of Army personnel.  The Expeditious Discharge Program was deleted and separation for unsatisfactory performance was established effective 1 October 1982.

	c.  Chapter 6, in effect at the time, provided for separation due to dependency or hardship.

		(1)  Dependency existed when death or disability of a member of a Soldier's (or spouse's) immediate family causes that member to rely upon the Soldier for principal care or support.

		(2)  Hardship existed when in circumstances not involving death or disability of a member of the Soldier's (or spouse's) immediate family, separation from the service will materially affect the care or support of the family by alleviating undue and genuine hardship.

		(3)  In determining eligibility for separation, "members of the immediate family" include only spouse, children, father, mother, brothers, sisters, only living blood relative, or any person who stood "in loco parentis" to the service member (or spouse) before entry into the service.  "In loco parentis" defined as any person who has stood in the place of a parent to the service member (or spouse) for a continuous period of at least 5 years before he or she reached 21 years of age.

	d.  Chapter 13, in effect at the time, provided for separation due to unsatisfactory performance when, in the commander's judgment, the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  Service of Soldiers separated because of unsatisfactory performance under this chapter would be characterized as honorable or under honorable conditions.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, prescribed the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  SPD code LHJ (LMJ) applies to Soldiers discharged for unsatisfactory performance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he enlisted at age 18 and he had never been away from home.  His commander refused to let him return to the United States to attend his uncle's funeral and his attitude and mental status changed after that.

2.  Family problems alone are normally not a basis for upgrading a discharge.  Although he implies he was young, his age is not a sufficiently mitigating factor.  He was 18 years old when he enlisted and successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

3.  He contends he accepted the administrative discharge under duress and he should have sought legal assistance.  However, the evidence of record shows he had the opportunity to consult with counsel in September 1982.

4.  The applicant was pending separation under the Expeditious Discharge Program; however, the governing regulation deleted the Expeditious Discharge Program and established separation for unsatisfactory performance effective 1 October 1982.  He was ultimately discharged on 15 October 1982 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.

5.  Since his brief record of service included adverse counseling statements and two NJPs, his quality of service was not sufficiently meritorious to warrant an honorable discharge.

6.  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 wherein he could have voiced his concerns; however, he elected not to do so.

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

8.  The applicant's request to change his narrative reason for separation to hardship was noted.  However, there is no evidence and the applicant provided no evidence showing he met the eligibility criteria or requested a hardship discharge.  There is no evidentiary basis for changing his narrative reason for separation.

9.  In view of the foregoing evidence, there is an insufficient 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 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)                                         AR20140018828



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140018828



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1