BOARD DATE:	  14 July 2015

		DOCKET NUMBER:  AR20140020898 


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 under honorable conditions discharge to honorable.

2.  The applicant states, in effect, that he believes he has been away from the service long enough for the character of his service to be upgraded to honorable.  Additionally, he states:

	a.  At the time of his discharge he was too young to appreciate what he was doing for his country.  Now that he is older, he understands what he did was wrong.  

	b.  About 10 years ago he tried to contact the Army about his service records but his request was sent to the wrong department and he never received an answer.  

	c.  An upgrade of his discharge would mean a lot to his family.  

3.  The applicant provides no additional documentary 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 11 September 1973 at age 17.  After completing initial training, he was awarded military occupational specialty 15F (Missile Crewman).  The highest rank/grade held was private first class/pay grade E-3.

3.  Available records indicate the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 30 April 1975 for one specification of Article 121 (Larceny or Wrongful Appropriation) stealing a case of beer.  Punishment included reduction in rank to private/E-2.

4.  On 8 July 1975, the applicant was convicted by a general court-martial of one specification of Article 126 of the UCMJ, willful and malicious arson, and one specification of Article 81 conspiracy to commit arson.  His sentence included 
6 months in confinement at hard labor (suspended until 7 July 1976) and reduction to private/E-1.  On 29 September 1976, the suspended portion of his sentence to confinement was vacated and he was sent to the U.S. Army Retraining Brigade, Fort Riley, KS to complete his sentence.

5.  On 6 February 1976, his commander initiated separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 5 (Separation for Convenience of the Government), paragraph 5-37 (Discharge for failure to demonstrate promotion potential).  The commander stated the reasons for this action included the applicant's failure to assimilate into the Army environment as evidenced by the fact that he had received one court-martial and one NJP.  Additionally, he had failed to develop as a satisfactory Soldier despite counseling by the Retraining Brigade cadre and professional staff.

6.  On 6 February 1976, the applicant acknowledged the commander's proposed action and consulted with counsel.  He voluntarily consented to the discharge and waived his right to submit a statement in his own behalf.  He affirmed he understood the receipt of a general discharge could cause him to encounter substantial prejudice in civilian life.  

7.  In an undated indorsement, the separation approval authority approved the commander's recommendation and directed the applicant receive a general discharge under honorable conditions.  On 18 February 1976, he was discharged accordingly.

8.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years and 6 months of net active creditable service.  His character of service is shown as being under honorable conditions (general).  He was awarded or authorized the National Defense Service Medal.

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

	a.  Chapter 5-37, in effect at the time, states personnel whose duty performance, acceptability for the Service, and potential for continued effective service fall below the standards required for Army enlisted personnel may be separated under this provision.  Discharge is limited to:

* personnel who fail to advance to private/E-2 after 4 months on active duty 
* those who fail to demonstrate the potential to justify advancement to the grade of private first class/E-3 after attaining the normal time-in-service and time-in-grade criterion

	b.  Paragraph 3-7a, currently in effect, 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, currently in effect, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel because of his inability to adapt to military life.  Accordingly, his immediate commander initiated separation action against him.  He was advised of his rights and consented to the discharge action.
2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which might have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case. 

3.  Records show the applicant was 17 years of age at the time of his enlistment and over 18 at the time of his offenses.  While relatively young, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

4.  Based upon the foregoing, there is insufficient evidence upon which to grant the 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)                                         AR20140020898



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ABCMR Record of Proceedings (cont)                                         AR20140020898



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