IN THE CASE OF:	 

		BOARD DATE:	       8 January 2009

		DOCKET NUMBER:  AR20080014289 


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 be upgraded to honorable.

2.  The applicant states that as a young man during his first enlistment he did not know the difference between a general discharge and an honorable discharge.  He became aware of the difference while seeking employment. 

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 7 September 1991.  

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 was born on 20 November 1956.  Having prior service in the Army National Guard and the U.S. Army Reserve (USAR), the applicant enlisted in the Regular Army on 26 April 1977 for a period of 3 years.  He was awarded military occupational specialty 11B (infantryman).  

3.  On 17 February 1978, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 9 February 1978 to 
10 February 1978.  His punishment consisted of confinement in correctional custody (deferred), a forfeiture of pay (suspended), and reduction to E-2 (suspended).

4.  On 14 September 1978, nonjudicial punishment was imposed against the applicant for being AWOL from 6 July 1978 to 6 September 1978.  His punishment consisted of a reduction to E-3, a forfeiture of pay, restriction, and extra duty.  

5.  On 14 June 1979, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 13, for unsuitability due to apathy, defective attitudes, or inability to expend effort constructively.  

6.  On 21 June 1979, the applicant consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement on his own behalf.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  

7.  On 2 August 1979, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.
    
8.  Accordingly, the applicant was discharged on 20 August 1979 with a general discharge under the provisions of Army Regulation 635-200, chapter 13, for unsuitability due to apathy defective attitudes, or inability to expend effort constructively.  He had served a total of 2 years, 6 months, and 10 days of creditable service and 61 days of lost time due to AWOL.

9.  The applicant subsequently served in the Army National Guard.

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

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability.  Chapter 13, in pertinent part, provided for discharge due to unsuitability because of apathy, defective attitudes, and inability to expend effort constructively.  The regulation stated that when separation for unsuitability was warranted an honorable or general discharge would be issued as warranted by his military record.

12.  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.  Age is not a sufficiently mitigating factor.  The applicant was 20 years old when he enlisted in the Regular Army.  In addition, he had prior service in the Army National Guard and the USAR.  

2.  A discharge is not upgraded for the purpose of obtaining employment opportunities.

3.  Since the applicant’s record of service included two nonjudicial punishments and 61 days of lost time, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulation with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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.




      _______ _  xxx _______   ___
               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)                                         AR20080014289





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ABCMR Record of Proceedings (cont)                                         AR20080014289



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