IN THE CASE OF:	  

		BOARD DATE:	  17 March 2009

		DOCKET NUMBER:  AR20080017117


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 discharged from the Army early to attend college and that his commander, a colonel, told him that he could only authorize that he receive a GD.  The applicant states that he has recently learned differently and asks that his GD be upgraded to an HD.

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 21 July 1975.  He completed basic combat training at Fort Leonard Wood, Missouri, and advanced individual training at Fort Lee, Virginia.  He was awarded military occupational specialty 76S (Auto Repairman Parts Specialist) and the highest rank he attained while serving on active duty was private/E-2.

3.  On 19 April 1976, the applicant’s unit commander notified him that he was initiating action to recommend the applicant be separated under the provisions of paragraph 5-37, Army Regulation 635-200 (Personnel Separations), based on his inability to adapt and failure to demonstrate promotion potential.

4.  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.

5.  On 23 April 1976, the separation authority approved the applicant’s discharge and directed that he receive a GD.  On 29 April 1976, the applicant was discharged accordingly.

6.  The DD Form 214 issued to the applicant on the date of his discharge shows he had completed a total of 9 months and 9 days of active military service.  It also confirms that he was discharged under the provisions of paragraph 5-37, Army Regulation 635-200, and that he received a GD.

7.  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.

8.  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.

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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his GD should be upgraded to an HD because his commander incorrectly told him that he was only authorized to give him a GD because he was separating from the service to attend college was carefully considered.  However, the evidence of record confirms the applicant was discharged from active duty under the provisions of Army Regulation 635-200, paragraph 5-37, as a result of his inability to adapt and his failure to demonstrate promotion potential.

2.  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, his inability to adapt to military service 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)                                         AR20080017117



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ABCMR Record of Proceedings (cont)                                         AR20080017117



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