RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  08 May 2008
	DOCKET NUMBER:  AR20080000666 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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, in effect, that his general discharge be upgraded to an honorable discharge. 

2.  The applicant essentially states that he challenges the ruling that he was unsuitable and apathetic, had a defective attitude, and the unable to expend effort constructively.  He also states, in effect, that no specific charges were brought against him, and that the evidence is vague. 

3.  The applicant provides no additional evidence in support of this 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 military records show he enlisted in the Regular Army on 
16 September 1980.  He completed basic training at Fort Knox, Kentucky; however, prior to completing basic training, he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order issued by a commissioned officer.  His punishment consisted of forfeiture of $104.00 pay per month for 1 month; restriction to the company area, chapel, dining facility, and place of duty for 14 days; and extra duty for 14 days.  He was then reassigned to Fort Gordon, Georgia for advanced individual training in November 1980.

3.  Between 23 January 1981 and 21 April 1981, the applicant accepted NJP under Article 15 of the UCMJ on three occasions.  His offenses included absenting himself from his place of duty on two occasions and failing to go at the time prescribed to his appointed place of duty on two occasions.  Collectively, his 
punishment consisted of reduction in rank and pay grade from private/E-2 to private/E-1, correctional custody for 7 days, forfeiture of $282.00 pay, 28 days of restriction, and 21 days of extra duty.

4.  On 21 April 1981, a mental status evaluation was conducted on the applicant, and he was essentially cleared for any administrative action deemed appropriate by his command.

5.  On 20 May 1981, the applicant's commanding officer notified him that he was recommending him for discharge from the United States Army before the expiration of his term of service.  He was advised of his rights, which included the types of discharge which could be awarded and their effects, the option of presenting his case before a board of officers with representation by counsel, and to submit statements in his own behalf.

6.  Additionally, on 20 May 1981, the applicant acknowledged that he was advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for unsuitability under the provisions of Chapter 13, Army Regulation 635-200 (Enlisted Personnel) and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He requested consideration of his case before a board of officers, and requested to appear before this board.   Although it appears that he elected to submit statements in his own behalf, none were present in his separation packet.  He requested representation by counsel.  He also acknowledged, in pertinent part, that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  

7.  On 5 August 1981, a board of officers, after carefully considering the evidence before it, found the applicant unsuitable for further retention in the military service because of apathy, and recommended that he be discharged from the service because of unsuitability with the issuance of a General Discharge Certificate.

8.  On 17 August 1981, the proper separation authority approved the findings and recommendations of the board officers, and approved the applicant's discharge from the United States Army under the provisions of paragraph 13-4c(2), Chapter 13, Army Regulation 635-200.  He also directed that the applicant be furnished a General Discharge Certificate.  On 21 August 1981, the applicant was discharged accordingly.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
10.  The applicant essentially stated that he challenges the ruling that he was unsuitable and apathetic, had a defective attitude, and unable to expend effort constructively.  He also stated, in effect, that no specific charges were brought against him, and that the evidence is vague. 

11.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to inaptitude, personality disorder, apathy, and homosexuality.  The regulation requires that separation action will be taken when, in the commander’s judgment, the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions.

12.  Army Regulation 635-200, paragraph 3-7a provides, in pertinent part, 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.

13.  Army Regulation 635-200, paragraph 3-7b provides, in pertinent part, 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.  The quality of service will be determined according to standards of acceptable personal conduct and performance of duty for military personnel.  These standards are found in the Uniform Code of Military Justice, directives and regulations issued by the Army, and the time-honored customs and traditions of military service.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant's contentions were noted, as was the fact that he implied that the evidence in his separation packet was vague.  However, 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 this requirement.

3.  The evidence of record clearly shows that the applicant was repeatedly counseled for multiple deficiencies, and that he accepted NJP under Article 15 of the UCMJ on five occasions for multiple offenses of the UCMJ.  Given these instances of misconduct and inappropriate behavior, the applicant failed to provide evidence which proves that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

4.  The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000666



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508