IN THE CASE OF:	  

		BOARD DATE:	  5 August 2008

		DOCKET NUMBER:  AR20080006590 


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, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD). 

2.  The applicant states, in effect, that at the time of his discharge, his first sergeant (1SG) informed him that it was not right for him to receive a GD given he almost completed his full term of service.  The ISG also informed him it would be straighten out and the applicant would be issued a correction to his separation document (DD Form 214) showing he received an HD and an HD Certificate 
60 days after his discharge.  

3.  The applicant provides no documentary evidence in support of his 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 record shows that he enlisted in the Regular Army and entered active duty on 1 November 1979, and was trained in, awarded, and served in military occupational specialty (MOS) 13B (Cannon Crewman).  The record also shows the highest rank he attained while serving on active duty was private first class (PFC).  His record documents no acts of valor, significant achievement, or service warranting special recognition.

3.  The applicant's record shows he was formally counseled by members of his chain of command for a myriad of performance and conduct related infractions between September 1980 and May 1982.  It also shows that on 31 July 1980, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 24 through 25 July 1980.  His punishment for this offense was 14 days of extra duty and restriction (suspended for 60 days).

4.  On 16 December 1980, the applicant accepted NJP for being AWOL from 
12 through 15 December 1980.  His punishment for this offense was a reduction to private/E-1 (PV1), a forfeiture of $116.00, and 14 days of restriction and extra duty. 

5.  On 29 January 1981, the applicant accepted NJP for being AWOL from 
31 December 1980 through 19 January 1981. His punishment for this offense was a forfeiture of $100.00 (suspended for 90 days) and 7 days in correctional custody.

6.  On 5 March 1982, the applicant accepted NJP for disobeying a lawful order and for being disrespectful towards a superior noncommissioned officer (NCO).  His punishment for these offenses was a reduction to private first class/E-3 (PFC), a forfeiture of $150.00, and 30 days of extra duty.  

7.  On 13 May 1982, the unit commander notified the applicant of his intent to initiate separation action on him under the provisions of chapter 13, 
Army Regulation 635-200, for unsuitability-apathy.  The unit commander cited the applicant's repeated incidents of misconduct as the basis for taking the action.  He further indicated that the applicant's poor attitude towards the performance of his duties was not in keeping with military morale and not conducive for good training.

8.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  Subsequent to this counseling, he waived consideration of his case by and personal appearance before an administrative separation board, and his right to consulting counsel.  The applicant did elect to submit a statement in his own behalf.  

9.  In his statement, the applicant indicated that he believed that the things he did were not so bad.  He stated that he had received several counseling statements and certificates on things he did do well.  He further indicated that he had been in the military for 2 years and 8 months, and that based on his length of service, he believed he should be allowed to finish his term of service and not be discharged with anything less than an HD.  He also stated that he had spoken to the Judge Advocate and Chaplain; however, he was informed they could do nothing to help him. Therefore, he decided he would just accept the Chapter 13 and get out of the military.  

10.  On 10 June 1982, the applicant's unit commander prepared a Bar to Reenlistment Certificate on the applicant.  The commander requested that the applicant be barred from reenlistment based on his record of habitual misconduct, and the appropriate authority approved this bar to reenlistment.

11.  On 19 July 1982, the applicant accepted NJP for wrongfully having in his possession and selling some amount of marijuana.  His punishment for this offense was a reduction to private/E-2 (PV2), a forfeiture of $140.00 and 14 days of extra duty.

12.  On 23 July 1982, the separation authority approved the separation action and directed the applicant receive a GD.  On 9 August 1982, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he had  completed a total of 2 years, 9 months, and 9 days of creditable service and he had accrued 16 days of lost time due to being AWOL.

13.  There is no indication in the record that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB’s 15-year statute of limitations.  

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, provided the authority for the separation of enlisted personnel for unsuitability based on inaptitude, personality disorder, apathy, or homosexual tendencies.  Members separated under these provisions could receive either an HD or GD. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his 1SG informed him that his discharge 
would be upgraded 60 days after his discharge was carefully considered.  However, there is no evidence of record or independent evidence submitted by the applicant that supports this claim.  

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout his separation process.  

3.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal an extensive disciplinary history that includes his acceptance of NJP on five separate occasions for offenses that include being AWOL and having in his possession and selling some amount of marijuana.  This extensive record of misconduct clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  

4.  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)                                         AR20080006590



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ABCMR Record of Proceedings (cont)                                         AR20080006590


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