RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 September 2007
	DOCKET NUMBER:  AR20070006482 


	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

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Chester A. Damian

Member

Mr. Edward E. Montgomery

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 under honorable conditions discharge (General Discharge) be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he thought his general discharge would automatically be upgraded if he did not get into trouble for 6 months after being discharged.  However, his discharge was never changed.  He states he would like to have his discharge upgraded to honorable, so that he can use the Department of Veterans Affairs (DVA) tax credit on his new home.

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

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 military records show that he entered active duty on  
13 October 1982.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty (MOS) 63B (Power Generator and Wheel Vehicle Mechanic).

3.  On 10 November 1983, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for knowingly and wrongfully using some amount of marijuana between 9-19 September 1983, a wrongful use having an adverse impact on military fitness and readiness, and being prejudicial to good order and discipline in the Armed Forces.  This is in violation of Article 134, UCMJ.  His imposed punishment included reduction to pay grade E-2 (suspended until 9 March 1984), forfeiture of $351.00 per month for 2 months (2nd month suspended 9 March 1984) and 45 days of extra duty.

4.  On 30 January 1984, the applicant accepted NJP under Article 15, UCMJ for willfully destroying, without authority, a window by breaking it, a value of $45.00, the property of the United States.  This is a violation of Article 108, UCMJ.  The punishment imposed was 7 days of extra duty.

5.  On 14 February 1984, the suspension of the punishments of reduction to the pay grade of E-2 and forfeiture of $321.00 that was imposed on 10 November 1983 was vacated and duly executed.

6.  He was absent without leave (AWOL) during the periods 29 February to  
13 March 1984.

7.  His military records show that during the period of July 1983 to March  
1984, he was counseled several times for missing formations and for missing a unit movement.

8.  On 6 April 1984, the applicant was convicted by a summary court-martial of one specification of AWOL for the period 29 February to 13 March 1984.  His sentence consisted of forfeiture of $445.00 and restriction for 60 days.

9.  On 16 April 1984, he received notification that he was being considered for separation under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 13, for unsatisfactory performance due to a lack of responsibility and refusing to conform to military standards.  Additionally, during his service he received several Article 15s, counseling statements, a summary court-martial for being AWOL, a positive urinalysis for marijuana, had caused criminal damage to government property, had misappropriated government property, and had several incidents of failure to repair.

10.  On 17 April 1984, the applicant was advised of the rights available to him and the effects of a discharge under honorable conditions.  He was also informed that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He was advised of his right to counsel, his right to an administrative hearing by a board of officers, his right to submit a statement in his own behalf, and his right to be represented by counsel at a hearing.  The commander also explained the applicant's waiver privileges and the withdrawal of waiver privileges.  The applicant stated that he would not submit a statement in his own behalf.

11.  On 24 April 1984, the recommendation for separation was approved by the appropriate authority.  On 4 May 1984, the applicant was given a general discharge from active duty for unsatisfactory performance.  He had completed  
1 year, 6 months, and 8 days of active service and accrued 14 days time lost.
12.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharges of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  The service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

14.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

15.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

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

2.  His discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would tend to jeopardize his rights.  The evidence provides sufficient basis for an under honorable conditions discharge for unsatisfactory performance.

3.  The applicant states that he thought his discharge would be upgraded after six months is noted.  However, the Army does not have or ever had a policy for an automatic upgrade.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.  In addition, granting veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the DVA.

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement; therefore, he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____rtd__  ___cad__  ___eem__  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.




__________Richard T. Dunbar_______
          CHAIRPERSON




INDEX

CASE ID
AR20070006482
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070927
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.