IN THE CASE OF:	  

		BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090006603 


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 under honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states that he was young at the time, that no one explained what he was signing, and that he did not know what he was signing when he signed the general discharge under honorable conditions.  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) in support of his 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 enlisted in the Regular Army on, 23 August 1974, at age 17 with parental consent.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 11B (infantryman).  His highest grade attained was private first class.  He was assigned to Fort Riley, KS as a rifleman.  

3.  On five separate occasions during the period between April 1975 and August 1976, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for the following offenses: (1) failing to go to his appointed place of duty; (2) disobeying a lawful order from his superior noncommissioned officer; and (3) wrongfully possessing marijuana.

4.  On 15 January 1976, the applicant was barred from reenlistment.

5.  The applicant's service record shows he received adverse counseling 19 times between April 1975 and January 1977 regarding his duty performance.  

6.  On 11 January 1977, the applicant was notified of the proposed separation action under the provisions of Army Regulation 635-200, paragraph 5-37 (Expeditious Discharge Program).  The applicant was advised of his rights.

7.  On 4 February 1977, the applicant acknowledged notification of the proposed separation action and voluntarily consented to discharge from the U.S. Army.  He did not submit a statement in his own behalf.  He acknowledged that if he was issued a general discharge under honorable conditions he could expect to encounter substantial prejudice in civilian life and he acknowledged he had been provided the opportunity to consult with an officer of the Judge Advocate General’s Corps.  

8.  On 17 February 1977, the separation authority approved the recommendation for separation and directed the issuance of a General Discharge Certificate.

9.  Accordingly, the applicant was discharged on 4 March 1977 under the provisions of Army Regulation 635-200, paragraph 5-37.  He completed 2 years, 6 months, and 12 days of active military service.  

10.  On 3 December 1979, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Paragraph 5-37 of this regulation, in effect at the time, governed the Expeditious Discharge Program.  This program provided for the separation of service members who had a poor attitude, who lacked the necessary motivation, discipline, ability to adapt socially or emotionally or failed to demonstrate promotion potential.  Under this regulation, a general or an honorable discharge was considered appropriate.  Further, the regulation stated that no individual would be given a general discharge by the separation authority unless the commander initiating the action for separation recommended it and the Soldier had the opportunity to receive legal counsel.

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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he did not know what he was signing when he signed the general discharge under honorable conditions because no one explained to him what he was signing.  However, the evidence of record shows the applicant was afforded the opportunity to consult with an officer of the Judge Advocate General's Corps and to provide a statement in his own behalf, but he declined to do so.  

2.  The applicant also contends he was young at that time.  However, age is not a sufficiently mitigating factor for upgrading a discharge.  

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  The applicant’s service record shows he received five NJPs for failing to go to his appointed place of duty, disobeying a lawful order, and wrongfully possessing marijuana.  The applicant’s was also counseled on 19 separate occasions regarding his duty performance and barred from reenlistment.  

5.  It appears the chain of command determined the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general under honorable conditions.  

6.  There is no evidence of record which indicates the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to honorable.
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)                                         AR20090006603



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ABCMR Record of Proceedings (cont)                                         AR20090006603



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