RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 29 April 2008
DOCKET NUMBER: AR20080002350
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:
Chairperson
Member
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 that he is disabled and he needs his discharge upgraded to be eligible for special benefits.
3. 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. Part II (Statement of Law Violations and Previous Conditions) of the applicant's DA Form 3286 (Statements for Enlistment), dated 21 October 1974, shows that he reported one violation (driving with an invalid license). He enlisted on 1 November 1974 for a period of 2 years.
3. On 2 January 1975, during a routine security investigation it was determined that the applicant had been arrested on 3 February 1974 in Miami, Florida, for breaking and entering.
4. On 9 January 1975, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 5, paragraph 38, for concealment of a felony arrest record.
5. On 16 January 1975, after consulting with counsel, the applicant acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued. He also elected not to submit a statement in his own behalf.
6. On 27 January 1975, the applicants unit commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 5, paragraph 38, for concealment of a felony arrest. He cited that the applicant had been a substandard Soldier, that he required counseling on numerous occasions, and that he did not possess the qualities required to become a productive Soldier.
7. On 6 February 1975, the separation authority approved the recommendation for separation from the service and directed the issuance of a General Discharge Certificate.
8. Accordingly, on 12 February 1975, the applicant was discharged with an under honorable conditions (general) discharge under the provisions of Army Regulation 635-200, chapter 5, for concealment of arrest record. He had served 3 months and 12 days of total active service.
9. 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.
10. Army Regulation 635-200, in effect at that time, set forth the basic authority for the separation of enlisted personnel. Chapter 5 (Separation for Convenience of the Government), paragraph 38, provided, in pertinent part, that enlisted personnel who concealed an arrest record which did not result in civil court conviction at the time of enlistment or induction might be discharged. Individuals discharged under this paragraph would be given an honorable discharge or a general discharge.
11. 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 members 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. A discharge is not upgraded for the sole purpose of obtaining any benefits.
2. The applicants administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
3. The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
XX_____ _XX____ __XX____ 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) AR20080002350
2
DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA 22202-4508
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