RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 June 2007
	DOCKET NUMBER:  AR20070000630 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. James Anderholm

Chairperson

Mr. Jerome Pionk

Member

Ms. Jeanette McPherson

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that her general discharge be upgraded to honorable. 

2.  The applicant states that she did not deserve this type of discharge and that she was not allowed to go school after being told she could further her education in the Army.  She also contends that she was told after a period of time her discharge would be automatically upgraded.  

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 22 June 1981.  The application submitted in this case is dated 4 January 2007.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted on 6 December 1979 for a period of 3 years.  She successfully completed basic training and advanced individual training in military occupational specialty 72E (telecommunications center operator).  

4.  On 7 April 1981, nonjudicial punishment was imposed against the applicant for failure to repair.  Her punishment consisted of a forfeiture of pay, extra duty, and reduction to E-2 (suspended).  On 16 April 1981, the suspended portion of the sentence was vacated.

5.  On 29 April 1981, the applicant was notified of her pending separation under the provisions of Army Regulation 635-200, chapter 13, for unsuitability due apathy, defective attitudes and inability to expend effort constructively.  Her unit commander cited that the applicant was unable to manage her time as required in the military service and that she was constantly unable to perform her military duties due to a physical profile.    

6.  On 30 April 1981, a bar to reenlistment was imposed against the applicant.

7.  On 4 May 1981, the applicant consulted with counsel, waived consideration of her case by a board of officers, waived a personal appearance, and elected not to submit a statement on her own behalf.  She also acknowledged that she understood she might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to her.  

8.  On 7 May 1981, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.
    
9.  Accordingly, the applicant was discharged on 22 June 1981 with a general discharge under the provisions of Army Regulation 635-200, chapter 13, for unsuitability due to apathy, defective attitudes and inability to expend effort constructively.  She had served a total of 1 year, 6 months, and 17 days of creditable service.

10.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations. 

11.  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.

12.  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.  

13.  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 a bar to reenlistment and one nonjudicial punishment, her 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 her rights.  She had an opportunity to submit a statement in which she could have voiced her concerns and she failed to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  Records show the applicant should have discovered the alleged injustice now under consideration on 22 June 1981; therefore, the time for the applicant to file a request for correction of any injustice expired on 21 June 1984.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JA_____  __JP____  __JM____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.


__James Anderholm_________
          CHAIRPERSON




INDEX

CASE ID
AR20070000630
SUFFIX

RECON

DATE BOARDED
20070626
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19810622
DISCHARGE AUTHORITY
AR 635-200 Chapter 13
DISCHARGE REASON
Unsuitability
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.