BOARD DATE: 3 November 2011 DOCKET NUMBER: AR20110010188 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 discharge under conditions other than honorable to honorable conditions. 2. The applicant states he should not have received a characterization of under other than honorable conditions. His discharge was based on him being a militant. He was an outstanding Soldier who never received any Article 15's. 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 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’s record shows he enlisted in the Regular Army on 31 January 1973 and he held military occupational specialty 11B (Infantryman). He was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). He was assigned to Fort Polk, LA. 3. On 21 March 1973, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his prescribed place of duty at the appointed time. 4. Between July and August 1973, he was counseled by several members of his chain of command for failing to get along with others, causing trouble with his fellow trainees and company cadre, lacking motivation, creating disturbances, and performing below standards. 5. On 14 August 1973, the State of Louisiana Department of Corrections, Alexandria, LA, notified his immediate commander that the applicant pled guilty to a charge of possession of marijuana on 8 June 1973 and had been sentenced to 6 months in jail. The sentence was suspended and the applicant was placed on 2 years of probation. 6. On 20 August 1973, he was notified by his immediate commander that discharge action was being initiated against him for unfitness under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13. 7. On 20 August 1973, he acknowledged notification of the proposed discharge action. He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights available to him. He further acknowledged he understood if he were issued an undesirable discharge he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life. He elected not to submit a statement in his own behalf 8. On 20 August 1973, the brigade chaplain submitted a statement to the applicant's immediate commander wherein he stated he had interviewed the applicant, the applicant had a difficult time adjusting to the military, had a negative attitude, and had stated he wanted to get out of the Army. The chaplain further recommended the applicant be discharged due to his poor attitude and performance. 9. On 27 and 29 August 1973, his chain of command recommended his separation under the provisions of Army Regulation 635-200, chapter 13. His senior commander stated the applicant had been in the unit for only 5 days before being confined in the Leesville County Jail, Leesville, LA, while awaiting trial for possession of marijuana. 10. The separation authority's approval is not available for review with this case. However, the DD Form 214 he was issued shows the applicant was discharged for unfitness on 13 September 1973 under the provisions of Army Regulation 635-200, chapter 13, with an under other than honorable conditions characterization of service. He completed 7 months and 13 days of creditable active 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, in effect at the time, contained the policy and outlines the procedures for separating individuals for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable 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. 14. Army Regulation 635-200, 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. 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 as evidenced by the NJP he received for failing to go to his place of duty; his conviction by civilian authorities for possessing marijuana; and his frequent counseling for causing trouble, lacking motivation, creating disturbances, and performing below standards. Accordingly, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13. 2. His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case. Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel. Therefore, he is not entitled to an honorable or a general 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) AR20110010188 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110010188 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1