IN THE CASE OF:	  

	BOARD DATE:	  29 JULY 2008

	DOCKET NUMBER:  AR20080006903 


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 discharge be upgraded to an honorable discharge.

2.  The applicant essentially states that it has been so long since he was discharged from the Army, and requests that his DD Form 214 (Report of Separation from Active Duty) be changed to show that he was honorably discharged.

3.  The applicant provides his DD Form 214 in support of this 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 military records show that he enlisted in the Regular Army on 13 May 1977.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He then departed for a tour in Germany in September 1977 for what would be his first and only permanent duty assignment.

3.  Between 1 December 1977 and 6 March 1979, the applicant was counseled on at least four occasions for instances of disrespect, being late for formation, and a general disregard for order and discipline.  Also, between 20 June 1978 and 9 August 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions.  His offenses included being found driving a military vehicle while he was posted as a sentinel at his company motor pool, failing to go at the time prescribed to his appointed place of duty on four occasions, and willfully disobeying a lawful command from his superior noncommissioned officer.  Collectively, his punishment consisted of two reductions in rank, a forfeiture of $259.00, 42 days of extra duty, 7 days of which was suspended, and restriction for 28 days,
14 days of which were suspended.

4.  The applicant's military records contained the results of his Skill Qualification Test (SQT), and this document shows that the applicant failed his SQT, and only scored 39 percent.  

5.  On 10 August 1979, the applicant’s company commander notified him that he was initiating action to discharge him from the United States Army under the provisions of paragraph 5-31 (Expeditious Discharge Program), Army Regulation 635-200 (Enlisted Personnel).  He also recommended that the applicant be furnished a General Discharge Certificate.  The reasons for his proposed actions were centered around the fact that he had shown constant disregard for authority, and despite his chain of command's efforts to rehabilitate him with counseling and NJP, he continued to rebel.  He also stated that the applicant's performance of duties was poor and other areas of performance, such as involvement in off-post incidents, have been a constant source of embarrassment to his unit and the Army in general.  He further stated that the applicant had demonstrated no promotion or rehabilitation potential, and that it would be in the best interests of the service and the applicant that he be expeditiously discharged.  The applicant was also advised of his rights.

6.  On or about 10 August 1979, the applicant acknowledged notification of his proposed discharge under the provisions of paragraph 5-31, Army Regulation 635-200, and voluntarily consented to his discharge.  He elected not to submit statements in his own behalf.    

7.  On 15 August 1979, a mental status evaluation was conducted on the applicant.  The medical officer who performed this evaluation determined that the applicant was mentally responsible, was able to distinguish right from wrong and the ability to adhere to the right, and that he had the mental capacity to understand and participate in board proceedings.

8.  On 14 September 1979, the proper authority approved the applicant’s discharge under the provisions of the paragraph 5-31, Army Regulation 635-200, and directed that he receive a General Discharge Certificate.  On 17 September 1979, the applicant was discharged accordingly.  

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  The applicant essentially stated that it has been so long since he was discharged from the Army, and requested that his DD Form 214 be changed to show that he was honorably discharged.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, paragraph 5-31, then in effect, provided the policy and outlined the procedures for separating individuals under the Expeditious Discharge Program.  This program provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.  An honorable or general discharge could be issued under this program.  

12.  Army Regulation 635-200, paragraph 3-7a, in effect at the time, provided 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.

13.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge.

2.  The applicant's contention that it has been a long time since he was discharged from the Army was considered.  However, the ABCMR does not upgrade discharges based solely on the passage of time.

3.  Evidence of record shows the applicant accepted NJP under the UCMJ on three occasions for multiple violations, and that he was counseled on his deficiencies.  Given the number of instances of misconduct, the applicant failed to provide evidence which proves that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

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.

5.  The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

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.




      ___        XXX                ___
                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)                                         AR20080006903



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ABCMR Record of Proceedings (cont)                                         AR20080006903



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