IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100012032 


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 honorable.

2.  He states he feels his general discharge should be upgraded because of his honorable Reserve duty.

3.  He 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.  The applicant's military records show he enlisted in the Regular Army, in pay grade E-1, on 17 September 1976, for 4 years, with a moral waiver.  He completed training and was awarded military occupational specialty 36C, Wire Systems Installer/Operator.  He served in Korea from 9 January 1977 through 8 January 1978.  

3.  On 10 January 1978, he accepted non-judicial punishment (NJP) under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), for absenting himself from his unit from 29 November to 2 December 1977.

4.  He was advanced to pay grade E-3 on 1 September 1978.  

5.  On 26 January 1979, he accepted NJP under the provisions of Article 15, of the UCMJ, for failing to go to his appointed place of duty on 13 and 16 January 1979.

6.  He was reduced to pay grade E-2 on 16 March 1979 based on punishment under Article 15, UCMJ.  He was again advanced to pay grade E-3 on 1 December 1979.

7.  He accepted NJP under the provisions of Article 15 of the UCMJ for the following:

* On 13 June 1979, for failing to go to his appointed place of duty on 29 May 1979 and disobeying a lawful order from his superior non-commissioned officer (NCO) on 29 May 1979
* On 2 October 1979, for being disrespectful in language toward his superior NCO on 28 August 1979
* On 10 April 1980, for being drunk and disorderly in his room on 4 April 1980
* On 10 July 1980, for treating his superior NCO with contempt and being found drunk while on duty on 16 June 1980.  He was reduced to pay grade E-2 on 10 July 1980
* On 15 July 1980, for being drunk and disorderly in the company area on 5 July 1980 
* On 30 July 1980, for failing to go to his appointed place of duty on 29 July 1980

8.  On 19 February 1980, a bar to reenlistment was initiated against him.  His unit commander stated the applicant had displayed an apathetic attitude toward the Army.  In all aspects of his military duties, the applicant consistently displayed indifferent behavior.  The unit commander also stated he felt the applicant's reenlistment could hinder the good conduct and morale of the unit and any other unit within the U.S. Army.  However, if the applicant showed a continued improvement over a period of months, the bar would be reviewed and recommended for removal.  The bar was approved on 17 March 1980.
9.  On 26 June 1980, the applicant's unit commander recommended he be separated with a general discharge at the expiration of his term of service (ETS).

10.  He was released from active duty in pay grade E-2 on 19 September 1980, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 2, Section VI, for completion of required service (ETS), with a general, under honorable conditions, discharge.  He was transferred to a Reserve unit.  He was credited with 4 years of net active service.

11.  He was honorably discharged from the U.S. Army Reserve (USAR) on 5 August 1982.

12.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his general discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 2 established policy and prescribed procedures for separating personnel who had completed the period of service for which enlisted, inducted, or ordered to active duty.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

14.  Army Regulation 635-200, paragraph 3-7a specified an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention has been noted.  However, the evidence of record shows that although he had completed his 4-year term of enlistment, it appears his overall record, to include several punishments under Article 15 and twice being reduced from pay grade E-3 to E-2, warranted separation with a general discharge.  Without evidence to the contrary, it appears the type of characterization of service directed and the reasons therefore were appropriate considering all of the facts of the case.  

2.  Based on the available evidence, there is no basis for the upgrade of his discharge to fully honorable.  He has submitted neither probative evidence nor a convincing argument that his honorable discharge from the USAR in 1982 warrants a fully honorable discharge for his period of service in the Regular Army from 17 September 1976 to 19 September 1980.  The type of discharge an individual receives is not changed based on having received an honorable discharge from a period of service in the USAR after their transfer from the Regular Army.

3.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100012032





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ABCMR Record of Proceedings (cont)                                         AR20100012032



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