IN THE CASE OF:
BOARD DATE:
DOCKET NUMBER: AR20080006320
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 his general discharge (GD) be upgraded.
2. The applicant states, in effect, that it has been over 20 years since he was discharged and he is seeking an upgrade to honorable.
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. The applicant entered active duty on 2 February 1976, completed training, and was awarded the military occupational specialty (MOS) 61B (Watercraft Operator).
3. The applicant was advanced to private first class (PFC) on 15 October 1976 and to specialist four (SP4) on 2 May 1977.
4. The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) as follows:
a. on 3 January 1977, for theft of a package of film;
b. on 12 October 1977, for missing morning work detail;
c. on 31 October 1977, for stealing a noon meal; and
c. on 24 January 1978, for missing morning formation on 17 January 1978.
5. A 4 April 1978 Statement of Formal Counseling shows the applicant was counseled on four occasions between 8 July 1976 and 27 March 1978. Twice for failure to repair, once for his military conduct, and once for disobeying a lawful order.
6. The applicant's unit commander notified the applicant of his proposal to discharge him under the provisions of paragraph 5-31 (Army Regulation
635-200 (Expeditious Discharge Program), for failure to maintain acceptable standards for retention. The unit commander recommended he receive a general discharge.
7. The applicant acknowledged the proposed separation and voluntarily consented to the separation. He acknowledged that he had consulted with counsel, that he had been advised of and understood his rights under the UCMJ, that if his service was characterized as under honorable conditions he could expect to experience substantial prejudice in civilian life, that there is no automatic review or upgrading of his discharge, and he could not apply for reenlistment for 2 years. He elected not to provide a statement on his own behalf.
8. The discharge authority approved the discharge recommendation and directed the applicant be separated with a GD.
9. The applicant was discharged on 24 April 1978 with 2 years, 2 months, and 23 days of creditable service.
10. There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.
11. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 5, as in effect at that time provided for administrative separations for convenience of the Government. Paragraph 5-31 provided separations under the Expeditious Discharge Program (EDP). This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated. Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel.
DISCUSSION AND CONCLUSIONS:
1. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.
2. The applicant had a history of infractions that spanned his period of service. The mere passage of time is not a sufficient reason to warrant an upgrade of his discharge.
3. 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.
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) AR20080006320
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20080006320
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