IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100010616 


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 that his general discharge be upgraded to honorable.

2.  The applicant states:

* he believes his discharge should have been upgraded to honorable after 6 months
* he needs an honorable discharge to receive help from certain organizations

3.  The applicant provides no documentary evidence 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 4 September 1974 for a period of 3 years.  He successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty (MOS) 76P (stock control and accounting specialist) and was later awarded MOS 76D (materiel supply man).

3.  On 22 October 1974, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order.

4.  On 16 September 1975, NJP was imposed against the applicant for violating a lawful general regulation.

5.  On 28 October 1975, NJP was imposed against the applicant for violating a lawful written regulation.

6.  On 6 August 1976, NJP was imposed against the applicant for failure to repair (three specifications), disobeying a lawful order, and violating a lawful general regulation.

7.  On 26 August 1976, discharge proceedings were initiated against the applicant under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 13-5b(3) for unsuitability – apathy, defective attitude, or inability to expend effort constructively. 

8.  On 29 September 1976, a bar to reenlistment was imposed against the applicant.

9.  On 8 November 1976, the applicant underwent a mental status evaluation.  No significant mental illness was noted and he was found mentally responsible.

10.  On 8 October 1976 after consulting with counsel, the applicant waived consideration of his case by a board of officers, waived representation by counsel, and he acknowledged he understood that he might receive a general discharge.  He also elected to submit a statement on his behalf.  In summary, he stated his biggest problem was not getting to places on time, but he always tried to do the best he could on the job.  He also stated an honorable discharge would help him in the future for the following reasons:

* he is married with a 9-month old son
* he is having marital and financial problems
* employment purposes

11.  On 10 November 1976, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

12.  On 26 November 1976, the applicant was separated with a general discharge under the provisions of Army Regulation 635-200, paragraph 13-5b(3), for unsuitability – apathy, defective attitude, or inability to expend effort constructively.  He served 2 years, 2 months, and 23 days of creditable active service.

13.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. 

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability.  Paragraph 
13-5b(3) provided for discharge due to unsuitability because of apathy, defective attitude, and inability to expend effort constructively.  The regulation stated that when separation for unsuitability was warranted, an honorable or general discharge was issued as appropriate by the member's military record.

15.  Army Regulation 635-200, paragraph 3-7, 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.

16.  The U.S. Army does not now 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.

DISCUSSION AND CONCLUSIONS:

1.  A discharge upgrade is not automatic.

2.  The ABCMR does not correct records solely for the purpose of making the applicant eligible for veterans' or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  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.

4.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

5.  The applicant's record of service included four NJP's and a bar to reenlistment.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

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)                                         AR20100010616



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ABCMR Record of Proceedings (cont)                                         AR20100010616



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