IN THE CASE OF:	  

	BOARD DATE:	  15 July 2008

	DOCKET NUMBER:  AR20080006196 


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 that her general discharge (GD), under honorable condition be upgraded to an honorable discharge.  

2.  The applicant states, in effect, that her DD Form 214 (Certificate of Release or Discharge from Active Duty) is incorrect and her service should have been characterized as honorable. 

3.  The applicant provides a copy of her DD Form 214 and a copy of her Social Security Card.

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 24 August 1979, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 28 January 1980, she was discharged from the DEP and enlisted in the Regular Army for 3 years.  She completed training requirements and was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist).  She attained the grade of private/
E-2.

3.  The applicant's records reveal a disciplinary history that includes her acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following 4 separate occasions for the offenses indicated:  20 August 1980, for absence without leave (AWOL) from 18-19 August 1980; 11 December 1980, for AWOL from 17-18 November 1980; 21 April 1981, for AWOL from 8-17 April 1980; and 4 May 1981, for failing to go to her appointed place of duty. 

4.  The applicant's official record also revealed a lengthy counseling history to include counseling for lack of motivation, her "quitter" attitude, poor performance of duty, her absences from duty; and her failure to adapt socially and emotionally to the Army.

5.  On 8 April 1981, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 13-4c of Army Regulation
635-200 by reason of unsuitability – apathy, defective attitude or inability to expend effort constructively.  The unit commander indicated that the applicant's inaptitude and inability to perform had damaged unit morale and that she showed no motivation to learn.  

6.  On 8 April 1981, the waived her right to consult with counsel and to appear before an administrative separation board.  She elected not to submit a statement in her own behalf.

7.  On 1 June 1981, the separating authority waived rehabilitation transfer and directed the applicant be discharged with a GD.

8.  On 12 June, the applicant was discharged by reason of unsuitability after completing 1 year, 3 months, and 28 days of active military service in the period under review.  She received a GD.

9.  Army Regulation 635-200 (Enlisted Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, to include separation for those individuals who fail to maintain Army physical standards.  Service of individuals separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.

10.  Army Regulation 635-200, paragraph 3-7, 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.

11.  On 2 June 1983, the Army Discharge Review Board considered the applicant's request for an upgrade of her discharge and denied her request.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her characterization of service was incorrectly annotated on her DD Form 214.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication of procedural errors which would tend to jeopardize her rights.  There is no evidence of an error in her characterization of service.  The separating authority directed that she receive a GD.

2.  The applicant received NJP on 4 occasions for various infractions of discipline.  She was counseled on several occasions and was subsequently recommended for separation based on her inaptitude and inability to perform.  The evidence of record shows that the command attempted to assist the applicant in performing and conducting herself to Army standards by providing counseling and by the imposition of nonjudicial punishment.  The applicant failed to respond appropriately to these efforts.

3.  The character of the applicant's discharge is commensurate with the applicant's overall record of military service.  As such, the quality of her service was not consistent with the Army's standard for acceptable personal conduct and performance of duty by military personnel.

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


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.



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 _   _______   ______________
       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)                                         AR20080006196



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ABCMR Record of Proceedings (cont)                                         AR20080006196



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