IN THE CASE OF:	  

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20080018547 


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 upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that the battalion commander coerced him into taking the general discharge or his life would be made dishonorable.  He also states that he wants to be an air traffic controller.

3.  The applicant provides no additional documentary evidence 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's records show he enlisted in the Regular Army on 3 January
1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71G (patient administration specialist).  He was promoted to pay grade E-4.  The applicant's records do not show any significant acts of achievement or valor during his military service.

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions:  on or about 18 September 1981 for being absent without leave (AWOL) from his unit during the period from 4 August through 6 September 1981 and on 4 October 1981 for disobeying a lawful order from his superior noncommissioned officer.

4.  Records show that on 19 November 1981 the applicant was informed that his commander intended to recommend him for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 13 due to unsuitability by reason of apathy and lack of appropriate interest.  His commander informed him that he had a record of frequent incidents of a discreditable nature with military authorities.  On the same date, his commander recommended he be separated from the service due to unsuitability under the provisions of Army Regulation 635-200, chapter 13.

5.  On 23 November 1981, the applicant acknowledged he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for unsuitability under the provisions of Army Regulation 635-200, chapter 13 and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  The applicant acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

6.  On 8 December 1981, the separation authority approved the recommendation for separation under the provisions of Army Regulation 635-200, chapter 13, for unsuitability and directed that the applicant be issued a General Discharge Certificate.  On 16 December 1981, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant confirms he completed a total of 3 years, 10 months, and 12 days of creditable active military service.  He had 33 days of lost time due to being AWOL.
 
7.  There is no indication 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 policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  At that time, paragraph 
13-5b(3) provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.

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.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he accepted NJP on two occasions.  He had 33 days of lost time due to being AWOL.  His discharge record shows that he had frequent incidents of a discreditable nature with military authorities.  Such conduct would certainly warrant an administrative separation from the Army.

2.  The applicant’s contentions that his commander coerced him into accepting the administrative discharge is not supported by the evidence of record.  Documents contained in the applicant's records confirm that the applicant's rights were protected throughout the discharge process.

3.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  The Board does not upgrade properly issued discharges to establish eligibility for jobs or benefits.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080018547



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ABCMR Record of Proceedings (cont)                                         AR20080018547



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