IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090009394 


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, he served honorably and his discharge should be upgraded as a result.   

3.  The applicant provides no additional documentary evidence 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's record shows that he enlisted in the Regular Army and entered active duty on 27 April 1976, and he was trained in and awarded military occupational specialty (MOS) 16P (Chaparral Crewman).  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was advanced to private (PV2)/E-2 on 27 August 1976, and that this is the highest rank he held while serving on active duty.  His record documents no acts of valor or significant achievement.  

4.  The applicant's disciplinary history includes his accrual of 34 days of time lost. He was absent without leave (AWOL) from 28 through 29 December 1977          (2 days), and he was in civil confinement from 5 August through 5 September 1977 (32 days).  

5.  The record also shows the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:  27 September 1977, for failing to go to his appointed place of duty at the time prescribed; and 
30 January 1978, for four specifications of failing to go to his appointed place of duty at the prescribed time and four specifications of absenting himself from his place of duty without authority.

6.  On 3 January 1978, the unit commander notified the applicant of his intent to recommend that he be discharged under the provisions of chapter 13, Army Regulation 635-200, by reason of unsuitability.  The applicant was informed of his rights in connection with this action.  The applicant completed an election of rights and waived his right to have his case considered by a board of officers, his right to a personal appearance before a board of officers, and his right to representation by counsel.  

7.  On 8 February 1978, the unit commander recommended that the applicant be discharged under the provisions of chapter 13, Army Regulation 635-200, by reason of unsuitability.  

8.  On 24 February 1978, the separation authority approved the applicant's discharge for unsuitability and directed the applicant receive a GD.  On 7 March 1978, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he completed a total of 1 year, 9 months, and 5 days of active military service and he accrued 
34 days of time lost due to being AWOL and in confinement.  


9.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, provided for the separation of members for unsuitability.  Members separated for unsuitability could receive either a GD or HD.  

10.  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 was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record 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 reveals a disciplinary history that includes his accrual of 34 days of time lost due to being AWOL and in confinement and his acceptance of NJP on two separation occasions.  This record of misconduct clearly diminished the overall quality of his service below that warranting the issuance of an HD.  Therefore, it would not be appropriate to upgrade his discharge at this late date.  

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)                                         AR20090009394



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ABCMR Record of Proceedings (cont)                                         AR20090009394



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