IN THE CASE OF:	  

	BOARD DATE:	 

	DOCKET NUMBER:  AR20080001780 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, upgrade of his general discharge to honorable. 

2.  The applicant states, in effect, that since his discharge, after all was under honorable conditions, he would just like it upgraded.  He also states that he was told that after a period of time he could get it changed to honorable.  He feels he could have it changed after such a long time. 

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Report of Separation 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 he enlisted in the Regular Army, in pay grade E-1, on 11 August 1978, for 3 years.  He completed basic combat and advanced training and was awarded the military occupational specialty 76V, Storage Specialist.  He was promoted to pay grade E-2 on 11 February 1979.

3.  On 23 May 1979, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order on 11 May 1979.  The punishment imposed included reduction to pay grade E-1, suspended for 60 days, and 7 days extra duty.  

4.  On 22 August 1979, the applicant accepted punishment under Article 15, UCMJ, for absenting himself from his unit from 31 July to 3 August 1979 and from 8 August to 15 August 1979.  The punishment imposed included forfeiture of $209.00 pay per month for one month and 14 days extra duty.  

5.  On 28 August 1979, the applicant's commander requested he be blocked from promotion to pay grade E-3 because his duty performance had been such as to not warrant promotion consideration at that time.  The request was approved on the same day.

6.  On 30 August 1979, the applicant’s commander notified him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200, paragraph 5-3, Expeditious Discharge Program (EPD).  He recommended the applicant be furnished a General Discharge Certificate.  He cited, as the reasons for the proposed actions:  the applicant's poor attitude and lack of self-discipline.  

7.  On the same day, the applicant waived his rights, consented to the proposed discharge action, and elected not to submit a statement in his own behalf.  He acknowledged that if he was furnished a general discharge, under honorable conditions, that he could expect to encounter substantial prejudice in civilian life.

8.  On 7 September 1979, the separation authority approved the recommendation for the applicant's separation for failure to meet acceptable standards for continued military service and directed that he be furnished a General Discharge Certificate.

9.  The applicant was discharged, in pay grade E-1, on 14 September 1979.  He was credited with 1 year and 24 days of total active service.  He was also credited with 10 days lost time due to his absence without leave.

10.  There is no evidence the applicant requested a separation medical examination prior to his discharge and his medical records are not available in his service personnel records for the Board's review.

11.  On 24 November 1980, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.

12.  Army Regulation 635-200 (Enlisted Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31 provided, in part, for the discharge of enlisted personnel whose performance of duty and potential for continued effective service falls below the standards required in the Army.  Individuals discharged under this regulation could be issued a general or honorable discharge. 

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The applicant voluntarily accepted discharge under the provisions of the EDP in lieu of disciplinary or administrative separation under other provisions of law or regulations.  He acknowledged that he understood the ramifications of a general discharge and that he had the opportunity to consult with legal counsel prior to accepting discharge.  The record further shows that the applicant voluntarily consented to the discharge.

2.  In the applicant's relatively short period of service he accepted two Article 15s, and was blocked from promotion consideration to pay grade E-3 based on his duty performance not warranting a promotion.  His commander determined that the applicant lacked motivation to successfully complete his military obligation and recommended his separation due to his poor attitude and lack of self-discipline.  

3.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a fully honorable discharge.  Additionally, the applicant is advised that the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge based upon the passage of time.  

4.  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 did not submit any evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  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.



	_________x_____________
	CHAIRPERSON

I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080001780



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ABCMR Record of Proceedings (cont)                                         AR20080001780


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