IN THE CASE OF:	 

		BOARD DATE:	  	   16 December 2008

		DOCKET NUMBER:  AR20080015239 


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, in effect, that his discharge was not unjust or in error at the time.  However, he argues that he regrets his actions and has worked in the Fire Service Career since 1973.  He concludes that although the upgrade would not change the fact that he was wrong towards the U.S. Army, it would provide closure to him.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of DD Form 345 (Armed Forces Liberty Pass), a copy of DD Form 714 (Meal Card), a one-page email message, a verification of employment letter, a certificate of appreciation, and two letters of commendation in support of this 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 was inducted into the Army of the United States on 14 July 1970 and after completion of initial entry training, he was awarded military occupational specialty 63A (Mechanical Maintenance Apprentice).

3.  On 16 December 1970, the applicant submitted a request for discharge as a conscientious objector.  His request was denied on 5 May 1971.

4.  On 1 September 1971, the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period 28 August 1971 through 30 August 1971.   

5.  On 21 September 1971, the applicant was examined by the Mental Hygiene Consultation Service (MHCS).  The examiner indicated, in effect, that the applicant was seen at the MHCS but rehabilitative efforts produced no significant attitude changes and the applicant expressed contempt for the military and continued to have difficulty dealing with authority figures.  The examiner continued that the applicant had been charged with being AWOL on one occasion and that the applicant indicated he would not perform as long as he was in the military.  The examiner concluded that the applicant would continue to be a discipline problem and that administrative action was appropriate.

6.  On 27 September 1971, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations) for unsuitability.  He cited the applicant's unwillingness to perform in any job and to respond to any rehabilitative efforts.

7.  On 27 September 1971, after consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

8.  On 1 October 1971, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

9.  On 5 October 1971, the applicant was discharged with a general discharge under the provisions of Army Regulation 635-212 for unsuitability.  He had served 1 year, 2 months, and 20 days of creditable active service with 2 days lost due to AWOL.

10.  In support of this application, the applicant provided a copy of DD Form 345 (Armed Forces Liberty Pass), a copy of DD Form 714 (Meal Card), a one-page email message, a verification of employment letter, and a Certificate of Appreciation.  This information is not pertinent to the applicant's case.

11.  In support of this application, the applicant also provided two letters of commendation which essentially describe his career as a firefighter.

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

13.  Army Regulation 635-200, governs the policies and procedures for 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a discharge upgrade has been carefully considered and determined to be without merit.  The supporting documents provided by the applicant fail to show that his discharge was unjust and should be upgraded.

2.  Evidence of records indicates the applicant failed rehabilitative efforts to improve his attitude with regard to the military.

3.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.



4.  The applicant's record of service included one nonjudicial punishment and two days of lost time.  As a result, 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.

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.



      __________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)                                         AR20080015239



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ABCMR Record of Proceedings (cont)                                         AR20080015239



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