RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  3 January 2008
	DOCKET NUMBER:  AR20070009905 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:
 

Ms. Ann M. Campbell

Chairperson

Mr. Dean A. Camarella

Member

Mr. Rodney E. Barber

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 discharge be upgraded to honorable. 

2.  The applicant states, in effect, that his young age of 17 years and only a ninth grade education should have been taken into consideration when he was discharged with a general discharge.  He further states that he believed his discharge would be upgraded automatically.    

3.  The applicant provides a copy of his Report of Separation from Active Duty (DD Form 214). 

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.  On 29 April 1977, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B1O (Infantryman).  

3.  On 29 August 1977, he was assigned for duty as a rifleman with the 1st Battalion, 38th Infantry Regiment, 2nd Infantry Division, in the Republic of Korea.

4.  On 29 November 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for making excess purchases of controlled items from the commissary and class six store.    The punishment included forfeiture of $50.00 pay per month for 1 month (suspended) and 5 days restriction and extra duty.



5.  On 11 February 1978, the applicant accepted NJP for failing to go to sick call on 7 February 1978, and for being absent without leave on 3 February 1978.  The punishment included reduction to private, pay grade E1 (suspended); forfeiture of $80.00 pay per month for 1 month; and 14 days restriction and extra duty. 

6.  On 29 March 1978, the applicant accepted NJP for failing to report for morning formation and for willful damage of government property.  The punishment included forfeiture of $90.00 pay per month for 1 month, and 14 days restriction and extra duty.

7.  On 29 March 1978, the commander notified the applicant of his intent to separate him due to his lack of self-discipline, indifference to military law and regulation, and inability to adapt to the United States Army.  The applicant acknowledged this notification and voluntarily consented to be discharged.  He elected not to submit a statement on his own behalf.  He further indicated that he understood that if he was issued a General Discharge Certificate he could expect to encounter substantial prejudice in civilian life and acknowledged that he was provided the opportunity to consult with an officer of the Judge Advocate General’s Corps.  

8.  On 1 April 1978, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 5-31.  In support of the recommendation, the commander cited the three NJP’s. 

9.  On 3 April 1978 a medical examination found him to be qualified for separation with a physical profile of 111111.

10.  On 3 April 1978, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate. 

11.  Accordingly, on 12 April 1978, the applicant was discharged under honorable conditions and issued a General Discharge Certificate.  He had completed 11 months and 14 days of creditable active service.

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 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5 of that regulation provides the authorization for separation for the convenience of the government.   A general discharge under honorable conditions was normally issued.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case and his record of NJP’s.

3.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

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

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__AMC___  __DAC __  __REB _  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.




__     Ann M. Campbell______ 
          CHAIRPERSON




INDEX

CASE ID
AR2007000905
SUFFIX

RECON
 
DATE BOARDED
20080103 
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19780412
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.