BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100028134 


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 to an honorable discharge.

2.  He states that he was informed his discharge would change after a period of time.

3.  He provides no additional evidence.

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 Delayed Entry Program on 30 September 1976.  He enlisted in the Regular Army, in pay 
grade E-1, on 13 October 1976, for 3 years.  He completed training and was awarded military occupational specialty 72E (Telecommunications Center Operator).  He was advanced to pay grade E-2 on 13 April 1977.

3.  On 19 September 1977, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disorderly by being involved in a fight on 3 September 1977

4.  He was advanced to pay grade E-3 on 13 July 1978.

5.  On 23 May 1979, he again accepted NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty on 14 and 16 May 1979.

6.  On 7 August 1979, a Bar to Reenlistment against the applicant was approved. The reasons cited were his Article 15 punishments, complete lack of discipline and control of his personal affairs, use of profane language towards a female, charging phone calls to the government, a traffic accident involving excessive speed and not having a valid driver's license, fraudulent use of a meal card while on separate rations, being in an area off-limits to males, being found guilty of an offense in civil court for hit and run driving, making false official statements, excessive traffic violations, bringing females into the barracks, failure to register his vehicle on post, making a false statement to civil authorities involving a hit and run accident, and failing to respond to counseling or disciplinary measures.  

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

* 15 August 1979, for failing to go to his appointed place of duty on 3 August 1979
* 10 October 1979, for assaulting a military policeman on 8 October 1979

8.  He was reduced to pay grade E-1 on 10 October 1979 based on punishment under Article 15, UCMJ.  

9.  On 12 October 1979, the applicant's 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-1 on 12 October 1979, 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 the U.S. Army Reserve Control Group (Reinforcement).  He was credited with completion of 3 years of active service and no lost time.
11.  He was honorably discharged from the USAR on 29 August 1985.

12.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his 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 stated 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 3-year term of enlistment, it appears his overall record, to include several punishments under Article 15, a bar to reenlistment based on numerous offenses, and reduction from pay grade E-3 to E-1, 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 evidence of record, there is no basis for the upgrade of his discharge to fully honorable.  He has submitted neither probative evidence nor a convincing argument warranting an upgrade of his general discharge.  

3.  Additionally, he is advised that the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge after any passage of time.

4.  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)                                         AR20100028134



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ABCMR Record of Proceedings (cont)                                         AR20100028134



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