IN THE CASE OF:	  

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090018782 


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 his 1976 discharge under honorable conditions be upgraded to fully honorable.

2.  The applicant states his discharge is more than 30 years old and he has grown and matured during this period.  He states he is married, has children, owns his own business and is a productive citizen.  As he’s aged he see life differently and realizes when he was younger he never thought his decision could affect him later in life.  He states he was young and never thought about the “now” part of his life and family.

3.  The applicant provides three character references and one statement indicating he successfully completed a counseling center program.

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 as a Regular Army Soldier on 23 October 1973.  He was 18 years old at the time.  He completed training as a petroleum storage specialist at Fort Lee, Virginia.  In February 1974 he was advanced to pay grade E-2.

3.  In March 1974 he was reassigned to Fort Benning, Georgia.  After being assigned to Fort Benning the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for the following offenses:

* September 1974 – absent without leave 23-26 August 1974
* October 1974 – failing to go to his appointed place of duty
* November 1975 – disobeying an order
* June 1976 – possession of marijuana

4.  On 2 June 1976 the applicant’s unit commander initiated actions to administratively separate the applicant from active duty under the provisions of Army Regulation 635-200, paragraph 5-37.  The basis for the recommendation was the applicant’s substandard performance as evidenced by his multiple UCMJ actions, refusal to adapt to Army and unit regulations, lack of discipline, and little regard for authority.  The unit commander indicated he was recommending the applicant receive a general discharge.

5.  The applicant acknowledged receipt of the proposed separation, voluntarily consented to the discharge, and waived his attendant rights.

6.  The appropriate authority approved the separation action and on 21 June 1976 he was discharged.  He was issued a general discharge certificate and his service was characterized as under honorable conditions.  He completed 
2 years, 7 months, and 24 days of creditable active service.

7.  The applicant's record doesn’t contain any evidence showing he applied to the Army Discharge Review Board to have his discharge upgraded within that board's statute of limitations.

8.  The statements provided by the applicant on his behalf are from friends and coworkers who all attest to the applicant’s trustworthiness and professionalism.




9.  References:

	a.  Army Regulation 635-200 (Enlisted Separations) provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Paragraph 5-37, then in effect, provided for the Expeditious Discharge Program.  This program provided for the discharge of individuals who had completed at least 6 months but less than 36 months of active duty and who demonstrated by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential that they could not or would not meet acceptable standards.  Such personnel were issued a general or honorable discharge, as appropriate.

	b.  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’s general discharge was appropriate considering the basis for his separation.  His records show his service was marred by repeated incidents of disciplinary infractions.  There is no evidence indicating his separation was not accomplished in compliance with regulatory guidance and no indication of any procedural errors that would have jeopardized his rights.

2.  The applicant's contention that he was young and has since become a productive citizen are noted; however neither serve as a basis to warrant upgrading the character of his service.

3.  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.








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)                                         AR20090018782





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ABCMR Record of Proceedings (cont)                                         AR20090018782



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