IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20080006923 


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 discharge, under honorable conditions be upgraded to an honorable discharge (HD).  

2.  The applicant states in effect, that clemency is warranted because it is unjust for him to continue to suffer the adverse consequences of a bad discharge.  He adds that his ability to serve was impaired because of marital, family and child care problems.    

3.  The applicant provides no additional documents 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 18 December 1973.  He was trained in and awarded military occupational specialty (MOS) 36K (Wireman) and the highest rank he attained while serving on active duty was pay grade E-3.  The record documents no acts of valor, significant achievement, or service warranting special recognition.  

3.  Between October 1974 and May 1975, the applicant was formally counseled on nine separate occasions for conduct and performance related issues that included missing formation, failure to repair, and unsatisfactory performance of his duties.

4.  On 10 May 1975, the applicant accepted nonjudicial punishment for disobeying a lawful order.  His imposed punishment included a reduction to pay grade E-1 (suspended for 6 months), a forfeiture of $172.00 pay, and 30 days of extra duty.  On 19 June 1975, the suspended portion of the punishment was vacated and duly executed.  

5.  On 8 July 1975, a Mental Status Evaluation and a physical examination cleared the applicant for separation.  

6.  The facts and circumstances pertaining to the applicant’s discharge proceedings are not in his Military Personnel Records Jacket (MPRJ).  However, the MPRJ does contain a separation document (DD Form 214) that shows that he was discharged on 28 August 1975, under the provisions of Army Regulation 635-200, chapter 13, with an under honorable conditions discharge.  The DD Form 214 (Report of Separation from Active Duty) issued to him at the time, confirms the applicant completed a total of 1 year, 8 months and 11 days of creditable active military service.

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

8.  Chapter 13, of Army Regulation 635-200 (Personnel Separations), applied to separation for unfitness and unsuitability.  At that time, this regulation required that separation action will be taken when, in the commander’s judgment, the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.


9.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his discharge, under honorable conditions should be upgraded to an honorable discharge due to personal problems and because it is unjust for him to continue to suffer the adverse consequences of such a discharge were carefully considered and found to be insufficient in merit.

2.  Although, the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing; it does contain a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s discharge.

3.  After carefully evaluating the available evidence in this case, it is determined that the applicant’s discharge processing was conducted in accordance with law and regulations applicable at the time and that the character of his service is commensurate with his overall record of military service.  Therefore, given the circumstances in this case, there is insufficient evidence to grant his request.  

4.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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)                                         AR20080006923



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ABCMR Record of Proceedings (cont)                                         AR20080006923



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