BOARD DATE:	  26 August 2009

		DOCKET NUMBER:  AR20090007275 


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 1978 discharge under honorable conditions be upgraded to fully honorable. 

2.  The applicant states he would like his discharge upgraded for “employment purposes.”  He states he fulfilled the terms under the general discharge and would like an honorable discharge “due to pride in serving my Country.”

3.  The applicant provides no additional 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 enlisted and entered active duty as a Regular Army Soldier on 
7 October 1975 for a period of three years.  Following completion of training he was assigned to a field artillery unit in Germany.  By April 1976 he had been promoted to pay grade E-3.

3.  Between November 1976 and September 1977 the applicant was punished six times under Article 15 of the UCMJ (Uniform Code of Military Justice) for offenses including hitting another Soldier with a beer bottle, shoplifting, having a pipe in his possession which contained marijuana residue, and failing to report to his place of duty on time.  As a result of the UCMJ actions the applicant was first reduced to pay grade E-2 and subsequently to pay grade E-1 in September 1977.

4.  On 9 December 1977 the applicant, after having consulting with counsel acknowledged that his commander was initiating actions to administratively separate him from active duty for misconduct and that he could receive a discharge under other than honorable conditions.  He acknowledged that if he received a discharge under other than honorable conditions he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  The applicant requested that his case be heard by a board of officers.

5.  In January 1978 the applicant was punished two more times under Article 15 of the UCMJ, once for failing to report to his place of duty on time and once for stabbing another Soldier with a comb.

6.  In February 1978 the applicant appeared with counsel before a separation board which concluded the applicant was undesirable for further retention in the military because of frequent incidents of a discreditable nature with military authorities and his rehabilitation was not deemed possible.  The board recommended discharge with issuance of a general discharge certificate.

7.  On 17 March 1978, the appropriate authority approved the recommendation that the applicant be discharged for misconduct-incidents of a discreditable nature with civil or military authorities directed that a general discharge certificate be issued. 

8.  The applicant was discharged on 10 April 1978, under the provisions of Army Regulation 635-200, paragraph 14-33b with his service characterized as under honorable conditions.  He was credited with completing a total of 2 years, 6 months, and 4 days of active Federal service.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 14-33b of the regulation established the policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absent without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.  

2.  The evidence shows the applicant was punished six times under Article 15 of the UCMJ and that two of the incidents for which he was punished occurred after he had already been notified that actions had been initiated to administratively separate him from active duty.  It is also noted the applicant could have been discharged under other than honorable condition but was issued a general discharge instead.  Based on his record of misconduct he is not entitled to upgrade of his discharge to fully honorable.

3.  In order to justify correction of a military record, the applicant must show, 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.  The passage of time, which the applicant implies is evidence that he fulfilled the terms of his general discharge, is without foundation.  The characterization of one’s service is not upgraded merely because time has passed or that it affects an individual’s ability to secure gainful employment.

4.  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)                                         AR20090007275





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ABCMR Record of Proceedings (cont)                                         AR20090007275



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