RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2008
	DOCKET NUMBER:  AR20080000047 


	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:


Mr. John T. Meixell

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Jeanette R. McCants

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 he was told his discharge would be upgraded.    

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 5 July 1978, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 12B1O (Combat Engineer).  

3.  On 17 October 1978, he was assigned for duty as a combat engineer with the 299th Engineer Battalion, Fort Sill, Oklahoma.

4.  On 27 March 1979, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL).  The punishment included reduction to private, pay grade E-1 (suspended), a forfeiture of $97.00 pay per month for 1 month, and 
7 days correctional custody.






5.   A mental status evaluation report dated 4 May 1979 stated that the applicant's behavior was normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

6.  On 24 May 1979, the suspended NJP punishment of reduction to private, pay grade E-1, imposed on 27 March 1979, was vacated.

7.  On 24 May 1979, the commander notified the applicant of his intent to separate him under the provisions of Army Regulation 635-200, paragraph 5-31, due to his poor performance of duty characterized by insubordination, disrespect to commissioned officers and noncommissioned officers, and by disobedience of lawful orders.  The commander further stated that the applicant seemed incapable of adjusting to military life and spent the greater portion of his time attempting to do as little as possible.  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 30 May 1979, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 5-31 for unsatisfactory performance.  In support of the recommendation, the commander stated that the applicant had accepted NJP and was pending another NJP.  There is no available evidence showing that the pending NJP was imposed.

9.  On 30 May 1979, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate. 

10.  Accordingly, on 4 June 1979, the applicant was discharged under honorable conditions and issued a General Discharge Certificate.  He had completed 
10 months and 27 days of creditable active service.

11.  There is no evidence showing that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.


12.  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.

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.

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

___LMD__  __JRM___  __JTM _  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.






_         John T. Meixell ________
          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.