IN THE CASE OF: BOARD DATE: 15 July 2008 DOCKET NUMBER: AR20080007023 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 that his general discharge be upgraded to honorable. 2. The applicant states that it has been more than 30 years since his discharge and he feels his discharge should be upgraded. He contends that he was told after ten years he could get his discharge upgraded. 3. The applicant provides no additional evidence in support of his application. 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 28 September 1973 for a period of 3 years. He successfully completed basic training and advanced individual training in military occupational specialty 95B (military police). 3. Between 9 April 1974 and 19 November 1974, nonjudicial punishment was imposed against the applicant on five occasions for failure to repair. 4. On 18 December 1974, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 13, for unsuitability due to apathy. 5. On 19 December 1974, the applicant consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement on his own behalf. He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him. 6. On 30 December 1974, the separation authority approved the recommendation for separation and directed the issuance of a general discharge. 7. Accordingly, the applicant was discharged on 6 January 1975 with a general discharge under the provisions of Army Regulation 635-200, chapter 13, for unsuitability due to apathy. He had served a total of 1 year, 3 months, and 9 days of creditable service. 8. On 21 September 1981, the Army Discharge Review Board denied the applicant’s request for an honorable discharge. 9. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability. Chapter 13, in pertinent part, provided for discharge due to unsuitability because of apathy, defective attitudes, and inability to expend effort constructively. The regulation stated that when separation for unsuitability was warranted an honorable or general discharge would be issued as warranted by his military record. 10. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 11. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. DISCUSSION AND CONCLUSIONS: 1. A discharge upgrade is not automatic. 2. Since the applicant’s record of service included five nonjudicial punishments, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge. 3. The applicant's administrative separation was accomplished in compliance with applicable regulation with no indication of procedural errors which would tend to jeopardize his rights. He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so. 4. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___xx___ ___xx___ ____xx__ 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. _ _______ xxxx____________ 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) AR20080007023 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080007023 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1