RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  23 August 2007
	DOCKET NUMBER:  AR20070004419 


	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. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. Lester Echols 

Chairperson

Mr. John T. Meixell

Member

Mr. Richard T. Dunbar

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 his general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, he thought he was receiving a hardship discharge due to being an "only child."  “Mother was ill and home alone.”  He was told that the discharge would be changed to honorable discharge after 
6 months.  The applicant continues by stating that he moved to American Samoa in 1980 and he did not review his DD Form 214 (Report of Separation from Active Duty) until recently.

3.  The applicant provides a copy of his DD Form 214 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’s record shows that he enlisted in the Regular Army and entered active duty on 9 September 1977.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Infantryman) and the highest rank he attained while serving on active duty was private first class/pay grade E-3.  

3.  The applicant's records show he received the Marksman Marksmanship Qualification Badge with (M-16) Rifle Bar. 

4.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  

5.  The record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being derelict in the performance of duty by failing to secure his M-16 Rifle on or about 18 August 1978, for willfully disobeying a lawful order on or about 18 September 1978, and for failing to go to his appointed place of duty on or about 4 January 1979. 

6.  On 2 July 1979, a summary court-martial convicted the applicant of being absent without leave (AWOL) during the period 25 April 1979 through 22 May 1979.  The applicant's sentence included reduction to the rank of private/pay grade E-2, extra duty for 25 days, and restriction for 25 days. 

7.  On 3 August 1979, the applicant’s unit commander advised the applicant that he intended to recommend his separation from the Army under the provisions of paragraph 5-31 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for failure to meet acceptable standards for continued military service.  The applicant acknowledged that he was advised of the basis for the contemplated separation action, its effects, and of the rights available to him. 

8.  On 3 August 1979, the separation authority directed the applicant be separated under the provisions of paragraph 5-31 of Army Regulation 
635-200 and he receive a general discharge, under honorable discharge conditions.  

9.  On 27 August 1979, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time, confirms the applicant completed a total of 1 year, 10 months, and 19 days of creditable active military service and he had 27 days of lost time due to being AWOL.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, then in effect, set forth the conditions under which enlisted personnel could be discharged, released from active duty or active duty for training, or released from military control, for the convenience of the Government.  Paragraph 5-31 provided the policies and procedures for separating enlisted personnel under the Army's Expeditious Discharge Program.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contends that his DD Form 214 should automatically be upgraded to an honorable discharge 6 months after he was separated from active duty.  

2.  The U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The ABCMR will grant changes if it is determined that the characterization of service or the reason for discharge were improper or inequitable.

3.  The applicant's records clearly show that he accepted punishment under Article 15 of the UCMJ for being derelict in the performance of duty by failing to secure his M-16 Rifle on or about 18 August 1978, for willfully disobeying a lawful order on or about 18 September 1978, and for failing to go to his appointed lace of duty on or about 4 January 1979. 

4.  The applicant's record also shows that on 2 July 1979, he was convicted by a summary court-martial of being AWOL during the period 25 April 1979 through 22 May 1979.  

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

6.  Accordingly, the type of discharge directed and the reason for discharge are appropriate considering all the facts of this case.

7.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LE___  __RTD___  __JTM___  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.




_Lester Echols __
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.