IN THE CASE OF:	  

		BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100026600 


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 discharge be upgraded to honorable. 

2.  The applicant states he was told at the time of his discharge that his characterization would be upgraded within 3 years.  He states he is a 100 percent disabled Veteran and is 100 percent disabled under the governing principle of the Social Security Administration.  He states he continued working in law enforcement with the U.S. Government after his discharge.

3.  The applicant did not provide supporting documents with 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 28 September 1977 for 3 years.  He completed his initial training and was awarded military occupational specialty 95B (Military Police). 

3.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) on two separate dates for failure to go to his appointed place of duty and being absent without leave (AWOL).  In addition, he was counseled on numerous occasions for his unsuitable conduct and lack of compliance with acceptable military standards of behavior. 

4.  On 16 May 1979, the applicant was convicted by a special court-martial of four specifications of failure to go to at the time prescribed to his appointed place of duty and two specifications of abandoning his place of duty without authority.  His sentence consisted of confinement at hard labor for 20 days, forfeiture of $75 per month for 2 months, and reduction to the pay grade of private/E-1. 

5.  On 29 May 1979, the applicant’s company commander notified the applicant that he was initiating separation action against him for unsuitability.  The applicant was advised he could receive an honorable or a general discharge.  He was advised he could submit statements on his own behalf, counsel could represent him, and he had the opportunity to present his case before a board of officers.  He was also told he could waive his rights in writing and withdraw the waiver any time prior to the discharge authority’s decision.  

6.  He acknowledged receiving this separation notification on 29 May 1979.  Accordingly, he submitted a statement acknowledging counsel had advised him of the contemplated separation action under the provisions of Army Regulation 635-200 (Personnel Separations) for unsuitability.  He waived consideration of his case by a board of officers and waived a personal appearance before said board.  He indicated he would not submit statements on his own behalf and he waived representation by counsel.

7.  He also acknowledged he understood that as a result of the issuance of a discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.  

8.  On 29 May 1979, his company commander recommended separation under the provisions of Army Regulation 635-200 before the expiration of his term of service for unsuitability.  The commander's recommendation was based on the applicant's exhibited pattern misconduct evidenced by frequent incidents of absence without leave and failure to go at the time prescribed to his appointed place of duty.

9.  On 30 May 1979, the separation authority approved the recommendation for elimination and directed the applicant's discharge under the provisions of Army Regulation 635-200 for unsuitability with an under honorable conditions characterization of service.

10.  Accordingly, on 1 June 1979, he was discharged under the provisions of Army Regulation 635-200, paragraph 13-4c for unsuitability with an under honorable conditions characterization of service.  He had completed 1 year, 7 months, and 16 days of creditable active service with 18 days of lost time.

11.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  At that time, paragraph 13-5b(3) provided for the separation of individuals whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  A SPN code of JMJ was assigned.  Paragraph 13-5(b)1 provided for the separation for unsuitability of those individuals who were considered to be inept due to lack of skill or adaptability, unhandiness or an inability to learn.  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.

13.  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 evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  He was counseled on numerous occasions and provided opportunities to improve his conduct and efficiency.  He accepted NJP and was court-martialed for his repeated offenses.  He did not conform; he continued to demonstrate substandard duty performance and a lack of respect for military authority, regulations and directives. 

2.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's administrative separation complied with applicable regulations with no indication of procedural errors that would have jeopardized his rights.  The type of discharge and reason for separation were appropriate considering all the known facts of this case.

4.  After a review of the applicant's record of service, it is evident that the quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.

6.  In view of the foregoing, the evidence is insufficient to upgrade the applicant's discharge to honorable.

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)                                         AR20100026600



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ABCMR Record of Proceedings (cont)                                         AR20100026600



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