IN THE CASE OF:	  

		BOARD DATE:	  	  21 October 2008

		DOCKET NUMBER:  AR20080011736 


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 states, in effect, that he was never involved with any drugs until after he was in the military.  It was his understanding according to his company commander, at his last post in Europe that his general discharge would be upgraded to an honorable discharge within 1 year.     

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 on 
17 December 1969, for a period of 3 years.  He completed the required training and was awarded Military Occupational Specialty (MOS) 12B (Combat Engineer).  The highest grade he attained was pay grade E-4.  

3.  On 5 October 1970, the applicant accepted nonjudicial punishment (NJP) for being disorderly in the company area by fighting in the company day room.  His imposed punishment was a reduction to pay grade E-2 and a forfeiture of $25.00 pay. 

4. On 16 September 1971, the applicant was evaluated by a psychiatrist.  The applicant was found mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.   

5.  On the same day, the applicant’s separation medical evaluation found the applicant physically fit for retention or separation.  The applicant’s medical separation examination also indicates that he was admitted into the hospital from 
7-10 September 1971 for acute drug intoxication.    

6.  On 25 September 1968, the applicant was advised by the unit commander that he was being recommended for discharge under the provisions of Army Regulation 635-212, by reason of unsuitability.  The stated reason for the recommendation was the applicant’ habits and traits of character manifested by repeated commission of petty offenses, failure to repair, failure to obey orders, his admittance of using drugs, and his a lack of desire to be a Soldier.   

7.  On the same day, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and further right to counsel.  The applicant did not submit a statement in his own behalf.

8.  The separation authority directed the applicant’s separation under the provisions of Army Regulation 635-212 for unsuitability and directed that the applicant be issued a General Discharge Certificate.  On 30 September 1971, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to him at the time, confirms the applicant completed a total of 1 year, 9 months and 14days of creditable active military service.

9.  Army Regulation 635-212 (Personnel Separations), then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, for discharge due to unsuitability because of apathy of those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively.  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.

10.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be insufficient in merit. 

2.  The available evidence confirms the applicant’s unit commander notified him of the contemplated separation action and that the applicant consulted with legal counsel.  It further shows that after being advised of the basis for the contemplated separation action and its possible effects, the applicant voluntarily elected to waive his right to have his case considered by a board of officers, and he elected not to submit a rebuttal statement in his own behalf. 

3.  After carefully evaluating the available evidence, 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.  The evidence of record confirms that the applicant’s rights were fully protected throughout the separation process.

4.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  


5.  The U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  

6.  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)                                         AR20080011736



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ABCMR Record of Proceedings (cont)                                         AR20080011736



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