IN THE CASE OF:
BOARD DATE: 19 May 2010
DOCKET NUMBER: AR20090020233
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 general under honorable conditions discharge be upgraded to fully honorable.
2. The applicant states he is seeking employment with the Federal government.
3. The applicant provides no additional documents 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 15 June 1976 for a period of 3 years.
3. Between October 1976 and August 1977, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on three separate occasions for the following offenses:
* failing to go to his appointed place of duty on 27, 28, and 29 September 1976
* failing to go to his appointed place of duty on 2 November 1976
* absent without leave (AWOL) from 9 August 1977 to 15 August 1977
* AWOL from 16 August 1977 to 18 August 1977
4. The applicant's unit commander notified him of pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 13, for unsuitability - apathy, defective attitudes, or inability to expend efforts constructively. The applicant was advised of his rights.
5. The applicant acknowledged receipt of the notification, consulted with legal counsel, waived consideration of his case before a board of officers, waived a personal appearance, and did not submit statements in his own behalf.
6. The separation authority approved separation with issuance of a General Discharge Certificate.
7. The applicant was discharged on 6 September 1977 under the provisions of Army Regulation 635-200, paragraph 13-4c(2), by reason of unsuitability apathy, defective attitude, or inability to expend effort constructively. He completed 1 year, 2 months, and 13 days of total active military service with 9 days of lost time.
8. There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within that board's 15-year statute of limitations.
9. Chapter 13 of Army Regulation 635-200, in effect at the time, applied to separation for unfitness and unsuitability. Paragraph 13-4c provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.
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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he would like his discharge upgraded because he is seeking employment with the Federal government is acknowledged. However, employment is not sufficiently mitigating to warrant relief in this case.
2. The applicant's administrative discharge proceedings under the provisions of Army Regulation 635-200, paragraph 13-4c(2), were conducted in accordance with law and regulations applicable at that time.
3. The applicant's service record shows he received three Articles 15 and he was AWOL for 9 days.
4. It appears the chain of command determined that 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.
5. The evidence of record does not indicate the actions taken in this case were in error or unjust. Therefore, 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) AR20090020233
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ABCMR Record of Proceedings (cont) AR20090020233
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