BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20160000842 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20160000842 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. BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20160000842 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. 2. The applicant states he was 17 years of age, immature, and involved in drug use when he decided to enlist in the Regular Army (RA). He became defiant of the rules and he was discharged under honorable conditions based upon a few petty violations. He was not tried by court-martial and a review of his military service records will show his claims are true. It has been more than 42 years since he was discharged and he is a mature and responsible member of his community. 3. The applicant provides no additional 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 RA on 11 June 1971 for a period of 3 years. At the time, he was 17 years old. a. Upon completion of training, he was awarded military occupational specialty (MOS) 36K (Field Wireman). b. He was promoted to private first class (PFC)/pay grade E-3 and assigned overseas to Germany on 25 June 1972. 3. The[UAu1] applicant accepted nonjudicial punishment (NJP) under the provisions of (UP) Article 15, Uniform Code of Military Justice (UCMJ), on four occasions for failing to go at the prescribed time to his appointed place of duty, as follows: * on 22 August and 23 August 1972 (two specifications) * on 17 November 1972 he was reduced to private (PV2)/pay grade E-2 * on 14 May 1973 * on 25 May 1973 he was reduced to private (PV1)/pay grade E-1 4. On 5 June 1973, the Commander, Detachment G, 37th Transportation Group (Motor Transport), notified the applicant he was being considered for discharge from the U.S. Army UP Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 (Unsuitability). The basis for the commander's action was the applicant's apathy toward duty and his continued absences. The applicant was advised of his rights and the separation procedures involved. 5. On 13 June 1973, the applicant was notified of his commander’s recommendation to eliminate him from the service for unsuitability. His commander noted the applicant had been counseled on six occasions pertaining to his poor performance, bad conduct, continued absences, and refusal to work. He also noted the applicant had been punished UP of Article 15, UCMJ, on four occasions. He further noted that the applicant was 19 years old. 6. Following notification of the separation action, the applicant consulted with legal counsel. a. He voluntarily waived consideration of his case by a board of officers and waived personal appearance before a board of officers. He also waived representation by military counsel or civilian counsel at his own expense. b. He elected not to submit statements in his own behalf. He acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him. c. The applicant and his consulting legal counsel placed their signatures on the document. 7. The battalion commander recommended approval of the separation action. 8. The separation authority approved the recommendation for discharge of the applicant for unsuitability and directed issuance of a General Discharge Certificate. 9. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), as corrected by a DD Form 215 (Correction to DD Form 214), dated 24 May 1995, shows the applicant was discharged UP AR 635-200, chapter 13, with his service characterized as under honorable conditions. He completed 2 years and 18 days of net active service during this period. 10. The Army Discharge Review Board (ADRB) considered the applicant's request for review of his discharge. On 21 August 1975, the ADRB determined the applicant was properly discharged and denied the relief requested. REFERENCES: AR 635-200, in effect at that time, set forth the policy and prescribed the procedures for the administrative separation of enlisted personnel. a. Chapter 13 provided for separation of enlisted members found to be unfit or unsuitable for further military service. Separation action would be taken when, in the commander's judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. A Soldier separated because of unsuitability under this regulation was furnished either an honorable or general discharge certificate, as warranted by his or her military record. b. 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. 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: 1. The applicant contends his general discharge under honorable conditions should be upgraded because he was immature, his discharge was based on petty violations of the rules, he had no significant acts of misconduct warranting trial by court-martial, and he has been a responsible member of his community for more than 42 years. 2. The applicant successfully completed training, he was awarded MOS 36K, and he attained the rank of PFC (E-3) within his first year of active duty, which demonstrates his capacity for honorable service and argues against his contention that he was immature. 3. The applicant's discharge UP AR 635-200, chapter 13, was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. In addition, the reason for and type of discharge directed were appropriate and equitable. 4. During the period of service under review, the applicant was counseled on six occasions pertaining to his poor performance, bad conduct, absences, and refusal to work. The absence of a conviction by court-martial is noted. However, it is also noted that he received NJP on four occasions and he was reduced from PFC/ to PV1/. Moreover, he completed only about two-thirds of his 3-year active duty service obligation. The evidence of record fails to show that the applicant's service met the standards of acceptable conduct and performance of duty for Army personnel to merit an honorable discharge. 5. The applicant's post-service conduct was considered. However, good post-service conduct alone is not normally a basis for upgrading a discharge. //NOTHING FOLLOWS// [UAu1]CE 9 – Documents referenced in case not attached. JMR ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000842 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000842 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2