IN THE CASE OF:
BOARD DATE: 5 October 2010
DOCKET NUMBER: AR20100010599
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 discharge to an honorable discharge.
2. The applicant states that his discharge should have been changed to honorable six months after he was discharged.
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 applicants 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 applicants 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 29 November 1976. He completed the required training and he was awarded military occupational specialty (MOS) 12B (combat engineer).
3. On 10 May 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 14 April 1977 to 19 April 1977.
4. On 6 July 1977, the applicant was notified of the proposed separation action under the provisions of Army Regulation 635-200, paragraph 5-37 (Expeditious Discharge Program) with a recommendation for a general discharge. He was advised of his rights. The applicant acknowledged notification of the proposed separation action, consulted with legal counsel, and did not submit a statement in his own behalf.
5. On 15 July 1977, the separation authority approved the recommendation for separation and directed the issuance of a General Discharge Certificate.
6. Accordingly, the applicant was discharged on 28 July 1977 under the provisions of Army Regulation 635-200, paragraph 5-37. He completed 7 months and 26 days of active service with 4 days of time lost due to AWOL.
7. The applicants record does not indicate he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army. Paragraph 5-37 of this regulation, in effect at the time, governed the Expeditious Discharge Program. This program provided for the separation of service members who had a poor attitude, who lacked the necessary motivation, discipline, ability to adapt socially or emotionally or failed to demonstrate promotion potential. Under this regulation, a general or an honorable discharge was considered appropriate. Further, the regulation stated that no individual would be given a general discharge by the separation authority unless the commander initiating the action for separation recommended it and the Soldier had the opportunity to receive legal counsel.
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 members 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 contention that his discharge should have been changed to honorable six months after he was discharged is without merit.
2. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
3. The applicants record shows he received one Article 15 for being AWOL for
4 days. It appears the chain of command determined 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.
4. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.
5. The applicants service 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) AR20100010599
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