BOARD DATE: 22 June 2010
DOCKET NUMBER: AR20090021817
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 an upgrade of his general discharge to honorable.
2. The applicant states he was on sick call for 1 week prior to his discharge.
3. The applicant provides no additional documentation 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. On 2 April 1974, the applicant enlisted in the Regular Army. He completed his initial training to include the Basic Airborne Course and was awarded military occupational specialty 11B1P (Light Weapons Infantryman with parachutist qualification). He was subsequently assigned to Fort Bragg, North Carolina.
3. The applicant was advanced to private first class/pay grade E-3 on 15 December 1974.
4. On 9 February 1976, the applicant's commander took action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-37. He cited the applicant's failure to adjust properly to military life as evidenced by:
a. two nonjudicial punishments and
b. performance counseling eight times between 23 May 1975 and 28 January 1976.
5. The applicant voluntarily consented to being discharged from the U.S. Army. He waived his right to submit a statement in his own behalf. He acknowledged that if issued a dishonorable or something less than honorable discharge he could expect to encounter substantial prejudice in civilian life.
6. On 27 February 1976, the appropriate authority approved the separation action. On 16 March 1976, the applicant was discharged under honorable conditions. He had completed 1 year, 11 months, and 15 days of creditable active duty service.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 5 of that regulation provided authorization for separation for the convenience of the government. Paragraph 5-37, in pertinent part, provided for a discharge based upon failure to demonstrate promotion potential. A general discharge under honorable conditions was normally issued.
8. There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
9. 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 contends that his general discharge should be changed to honorable because he was on sick call.
2. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
3. The type of discharge directed and the reasons were appropriate considering all of the facts of the case and his record of nonjudicial punishments.
4. The applicant's record of good service is diminished by the two nonjudicial punishments and numerous counselings. Furthermore, he has not provided sufficiently mitigating argument or documentary evidence to warrant an upgrade of his discharge.
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 the aforementioned requirement.
6. 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) AR20090021817
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ABCMR Record of Proceedings (cont) AR20090021817
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