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ARMY | BCMR | CY2008 | 20080007784
Original file (20080007784.txt) Auto-classification: Denied

	IN THE CASE OF:	  

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080007784 


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 under honorable conditions be upgraded to fully honorable.

2.  The applicant states that his general discharge under honorable conditions complicates his employment searches.

3.  The applicant provides a copy of his re-issued 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 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 enlisted in the Regular Army on 18 November 1971.  He completed basic combat training.

3.  On 10 March 1972, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty.

4.  On 22 March 1972, the applicant accepted NJP under Article 15, UCMJ, for being derelict in the performance of his duties by sleeping on his post of security guard.

5.  On 27 March 1972, the applicant accepted NJP under Article 15, UCMJ, for being derelict in the performance of his duties by sleeping on his post of security guard.

6.  On 11 April 1972, the applicant accepted NJP under Article 15, UCMJ, for being absent without leave (AWOL) from on or about 3 April 1972 to on or about 9 April 1972.

7.  The applicant’s complete discharge packet is not available.

8.  On 9 May 1972, the applicant was advised by counsel of the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-212.  He waived consideration of his case by a board of officers, waived personal appearance before such a board, elected not to make a statement on his behalf, and waived representation by counsel.

9.  On 10 May 1972, the applicant’s commander formally recommended the applicant be discharged for unfitness under the provisions of Army Regulation 635-212 because of repeated incidents of a discreditable nature with military authorities and that an Undesirable Discharge Certificate be issued.

10.  On 12 May 1972, the brigade-level commander recommended approval and that the applicant be issued an Undesirable Discharge.

11.  The approval authority’s action is not available.

12.  On 30 May 1972, the applicant was discharged with an undesirable discharge and a characterization of service of under other than honorable conditions in pay grade E-1, under the provisions of Army Regulation 635-212 for unfitness.  He had completed 6 months and 13 days of creditable active service and had 8 days of lost time.

13.  On 9 December 1977, the Army Discharge Review Board (ADRB) noted that there was an error in the administrative processing of the applicant in that he had not been given a mental status evaluation or a psychiatric evaluation.  Therefore, the ADRB voted to grant partial relief by upgrading his discharge to general under honorable conditions.  Recharacterization of his service to fully honorable was not considered appropriate in view of his overall record.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness or unsuitability.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, or failure to contribute adequate support to dependents, were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort was unlikely to succeed.

15.  Army Regulation 635-200 governs the separation of enlisted personnel.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  Discharges are not upgraded solely to afford an applicant additional/better employment opportunities.

2.  Although the ADRB upgraded the applicant’s undesirable discharge to a general discharge under honorable conditions because the evidence indicated he had not been given a mental status evaluation or a psychiatric evaluation, there is no evidence of record, and the applicant has never contended, that he was mentally incapable of serving as a Soldier.

3.  Considering the applicant’s four Article 15s and 8 days of AWOL, further upgrading of his discharge to fully honorable does not appear to be warranted.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  ___xx___  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.



________xxxxx____________
       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)                                         AR20080007784





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ABCMR Record of Proceedings (cont)                                         AR20080007784



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