IN THE CASE OF:	  

		BOARD DATE:	        25 September 2008

		DOCKET NUMBER:  AR20080012799 


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

2.  The applicant states, in effect, that he was told his GD would be upgraded to an HD in six months.

3.  The applicant provides no documentary evidence in support of his request.

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 record shows he enlisted in the Regular Army and entered active duty on 25 November 1974.  He was trained in and awarded military occupational specialty (MOS) 67N (UH-1 Helicopter Repairman), and the highest rank he attained while serving on active duty was private/E-2 (PV2).

3.  The applicant's Official Military Personnel File (OMPF) contains ten records of counseling, dated between 3 June 1975 to 9 February 1976, which show the applicant was counseled by members of his chain of command for the following infractions:  failure to repair; not shaving; disobeying orders; poor appearance; speeding; lack of discipline and respect; poor attitude towards military; extreme lack of self discipline; lack of knowledge in his MOS; and poor duty performance.

4.  On 4 February 1976, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order.  The resultant punishment was a forfeiture of $50.00 and 14 days of extra duty.  

5.  On 25 March 1976, the unit commander notified the applicant of that he was initiating action to recommend the applicant be separated under the provisions of Paragraph 5-37, Army Regulation 635-200, based on his failure to conduct himself in a military manner and an inability to accomplish assigned tasks without constant supervision.

6.  On 26 March 1976, the applicant underwent a mental status evaluation.  The results of this evaluation showed that the applicant's behavior and thought content was normal, he was fully alert and oriented, he had an unremarkable mood, his thinking process was clear, and his memory was good.  It was also determined that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, met retention requirements, and had the mental capacity to understand and participate in separation proceedings.

7.  After being advised of the basis for the contemplated separation action and its effects by his unit commander, the applicant voluntarily consented to be discharged from the Army and elected not to submit statements in his own behalf. 

8.  On 31 March 1976, the separation authority approved the applicant’s discharge and directed that he receive a GD.  On 7 April 1976, the applicant was discharged accordingly.  


9.  The DD Form 214 issued to the applicant on the date of his discharge shows he had completed a total of 1 year and 4 months of active military service and that he accrued 14 days of time lost due to being absent without leave (AWOL).  It also confirms that he was discharged under the provisions of Paragraph 5-37, Army Regulation 635-200, and that he received a GD.

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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37 of the version of the regulation in effect at the time of the applicant's discharge provided for the separation of personnel because of unsatisfactory performance or conduct (or both).  This policy applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation or self discipline for military service, or that they had demonstrated characteristics not compatible with satisfactory continued service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he believed his GD would be upgraded to an HD 6 months after his discharge from the Army was carefully considered.  However, there is insufficient evidence to support his claim.

2.  The Army does not now have nor has it ever had an automatic policy to upgrade discharges.  Upgrades are granted only after a review by the ADRB or this Board determines the discharge was improper or inequitable.  The evidence of record in this case confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant's record documents no acts of valor, significant achievement or service warranting special recognition.  However, it does reveal an extensive disciplinary history that includes his acceptance of NJP, and repeated records of counseling for his disciplinary infractions, which clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  


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.

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)                                         AR20080012799



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ABCMR Record of Proceedings (cont)                                         AR20080012799



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