IN THE CASE OF:	  

		BOARD DATE:	  31 November 2010

		DOCKET NUMBER:  AR20100015582 


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 under honorable conditions to an honorable discharge.

2.  The applicant states he was extremely young and did not truly realize the nature of his real duty to his country.  He was irresponsible and hasty in requesting his discharge.  He did not understand the adverse impact of his decision.

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's DD Form 214 (Report of Separation from Active Duty) shows he enlisted in the Regular Army on 11 July 1978.  At the time of his enlistment the applicant was 18 years of age.  His record shows that after successfully completing basic combat training and advanced individual training he was awarded military occupational specialty 05B (Radio Operator).  The highest rank he attained was private/pay grade E-2.

3.  On 26 January 1979, the applicant received nonjudicial punishment (NJP) for being absent without leave (AWOL) from 15 to 16 January 1979.  His imposed punishment was a reduction to pay grade E-1, a forfeiture of $75.00 pay, 14 days restriction and 14 days extra duty.

4.  Between January and February 1979, the applicant was counseled on eight different occasions for failure to repair, for the dirty condition of his room, for missing formation, for breaking restriction, and for poor conduct.

5.  On 9 February 1979, the applicant received NJP for failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was a forfeiture of $200.00 pay (suspended for 60 days), 20 days of restriction, and 20 days of extra duty.

6.  On 9 February 1979, the applicant was found mentally fit for separation.  There was no evidence of psychosis or neurosis or other disorders qualifying him for disposition through medical channels.  He was considered mentally competent to participate in board proceedings.

7.  The facts and circumstances related to the applicant's discharge proceedings are not available.  However, a properly-constituted DD Form 214 shows the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, by reason of unsuitability with a general discharge.  The DD Form 214 also shows the applicant held the rank of private/pay grade E-1 on the date of discharge and he completed a total of 8 months and 4 days of active military service.

8.  There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  It 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.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered.  Although the specific facts and circumstances surrounding the applicant's discharge proceedings are not available, the evidence does include a properly-constituted DD Form 214 that identifies the authority and reason for the applicant's discharge and there is a presumption of government regularity attached to this document.

2.  By regulation, commanders will separate a member under the provisions of chapter 13, Army Regulation 635-200, for unsuitability when it has been determined that the Soldier will not develop sufficiently.

3.  The regulation further indicates that the service of Soldiers separated because of unsuitability will be characterized as honorable or under honorable conditions as warranted by their military record.  In this case, there is no evidence and the applicant did not submit any evidence that shows there was an error or injustice related to his separation.  Therefore, absent any evidence to the contrary, it is concluded the applicant's separation processing was accomplished in accordance with the applicable regulation.  His disciplinary history includes his acceptance of NJP on two separate occasions which clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, his record did not support the issuance of an honorable discharge at the time and does not support an upgrade now.  Further, the DD Form 214 documents no acts of valor or significant achievement warranting special recognition that would have supported the issue of an honorable discharge by the separation authority at the time of discharge or that would support an upgrade at this time.

4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100015582



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ABCMR Record of Proceedings (cont)                                         AR20100015582



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