IN THE CASE OF:	  

		BOARD DATE:	  	  21 October 2008

		DOCKET NUMBER:  AR20080011202


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 under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he could not contest an injustice and no truth was ever proven.  He maintains, in effect, that he stayed freshly dressed with polished boots until the end.

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 available records show that he enlisted in the Regular Army and entered active duty on 12 August 1980 for a period of 4 years.  He successfully completed the required training and was awarded military occupational specialty 11H (Heavy Anti-Armor Crewman).  The highest pay grade he attained was pay grade E-2.

3.  Between February and April 1981, the applicant was counseled on 14 different occasions for failure to repair, poor duty performance, being disrespectful, stealing, non-spousal support, and traffic tickets.

4.  On 1 April 1981, while assigned to a unit in Hawaii, the applicant received nonjudicial punishment for failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was a forfeiture of $100.00 pay, 7 days of restriction and 14 days of extra duty.

5.  On 26 May 1981, his unit commander notified the applicant of his intent to initiate action to separate him under the provisions Army Regulation 635-200 (Personnel Separations), paragraph 5-31, for failure to maintain acceptable standards for retention with a discharge under honorable conditions.  The applicant was advised of the rights available to him.  

6.  On the same day, the applicant acknowledged notification the proposed separation action from the United States Army under the provisions of Army Regulation 635-200, paragraph 5-31.  He acknowledged notification and voluntarily consented to the discharge and elected not to make a statement in his own behalf.

7.  On 8 June 1981, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 5-31, and directed that the applicant receive an Under Honorable Conditions Discharge Certificate.  On 26 May 1981, the applicant was separated accordingly.  The DD Form 214 issued to him upon his separation confirms he was discharged under the provisions of paragraph 5-31h(2), Army Regulation 635-200, by reason of failure to maintain acceptable standards for retention.  It also shows that at the time of discharge, he had completed a total of 10 months and 13 days of active military service.

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

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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be insufficient in merit in warranting an upgrade of his discharge at this time.  The applicant’s file was thoroughly reviewed and the evidence of record confirms that the applicant’s discharge was based on his inability to maintain acceptable standards for retention.  There is no evidence in his military record nor has the applicant provided any evidence to support his allegations. 

2.  The applicant's voluntary consent for separation under the provisions of Army Regulation 635-200, paragraph 5-31, was administratively correct and in conformance with applicable regulations.  There is no indication that the consent was made under coercion, duress or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge was approved, he could encounter substantial prejudice in civilian life by reason of a discharge under honorable conditions.

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)                                         AR20080011202



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ABCMR Record of Proceedings (cont)                                         AR20080011202



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