IN THE CASE OF:	  

		BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090016675 


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 that at the time of discharge he signed a paper saying he was to receive an honorable discharge.

3.  The applicant provides no documents to support 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 in the Regular Army on 24 September 1976.  During training he received nonjudicial punishment (NJP) on 8 December 1976 under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) failing to go at the time prescribed to his appointed place of duty (guard duty).

3.  He completed training as a Hercules missile launcher crewman and in February 1977 he was stationed in Korea.  On 20 May 1977 he received NJP for failing to go at the time prescribed to his appointed place of duty (morning formation).

4.  He was transferred to Key Largo, FL in July 1977 where he was advanced to the rank/grade of private first class (PFC)/E-3 in September 1977 and to specialist four (SP4)/E-4 on 1 January 1978.

5.  In June 1978 the applicant reported for duty in Greece.  On 25 August 1978 he received NJP for using provoking words, resisting lawful apprehension, and willfully disobeying a lawful order from a superior noncommissioned officer.  His punishment included reduction to pay grade E-3.

6.  He was transferred to Germany in October 1978.  On 18 December 1978 he received NJP for assaulting a German taxi driver and for failing to pay a just debt (taxi fare).

7.  On 25 January 1979, a report of mental status evaluation found the applicant fully alert and oriented.  He displayed a level mood and good thought processes and memory.  There was no impression of mental illness.  He was mentally responsible and able to tell right from wrong and to adhere to the right.  He could understand and participate in the separation process and he met retention standards.

8.  On 28 February 1979 he received NJP for being drunk and disorderly.

9.  The applicant was notified of initiated elimination action for unsuitability by reason of apathy and defective attitude.  He was advised of his rights.

10.  He consulted with counsel and completed an AE Form 113-2 (Respondent's Election of Rights UP [Under the Provisions of] Chapter [13] AR [Army Regulation] 635-200).  On this form he waived his rights to have a board of officers consider his case, to appear before such a board, and to be represented by counsel.  He indicated that he was not submitting statements in his own behalf.  Item 7 states "I understand that I may expect to encounter substantial 

prejudice in civilian life in the event a General Discharge under honorable conditions is issued to me."  In the same item he hand printed the statement, "I understand I am to receive an honorable discharge."  Immediately following, item 8 states, "I may only receive a discharge under honorable conditions since I am being recommended for separation for Unsuitability or Unfitness pursuant to paragraph 13-5a(3)(b)."  The applicant placed an "x" in the appropriate box along with his initials.

11.  The commander recommended separation for unsuitability due to apathy, defective attitudes, and inability to expend effort constructively.  He noted that the applicant had been counseled on numerous occasions and had been punished under Article 15, UCMJ.  He recommended that any rehabilitation requirements be waived.

12.  The battalion commander recommended approval.  The brigade commander waived the rehabilitation requirement, approved the separation, and directed a General Discharge Certificate be issued.

13.  No one acknowledged, commented on, or approved the applicant's hand printed assertion that he was to receive an honorable discharge.

14.  On 17 April 1979 the applicant was separated under the provisions of Army Regulation 635-200, paragraph 13-4c with a general, under honorable conditions discharge.  He had 2 years, 6 months and 24 days total active service.

15.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of the regulation in effect at the time provided for separation due to several factors including apathy.  The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions.

16.  Paragraph 13-5(a)1 of the regulation provided for the separation for unfitness [misconduct], which included frequent incidents of a discreditable nature.  When separation for unfitness was warranted an undesirable (under other than honorable conditions) discharge was normally considered appropriate.

17.  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 states that at the time of discharge he signed a paper saying he was to receive an honorable discharge.

2.  The applicant did sign the election of rights form in which he hand printed, "I understand I am to receive an honorable discharge."  However, no official in the chain of command acknowledged, commented on, or approved that statement.

3.  Considering that his misconduct had made him eligible for separation for unsuitability, his record clearly did not meet the standard necessary for an honorable discharge.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

5.  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.

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

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)                                         AR20090016675



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ABCMR Record of Proceedings (cont)                                         AR20090016675



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