IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100029144 


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 an honorable discharge.

2.  The applicant states he was discharged for being absent without leave (AWOL) for 14 days.  He got married while in advanced individual training (AIT) and his wife was already pregnant.  He was 18 years of age and he was confused.  Since his discharge he has been a model citizen.  He graduated third in his class for the Detroit Police Reserve and attained the rank of captain with the Wackenhut Corporation at Comerica Bank where he received several awards. He was assigned as a court officer in the 36th District Court in Detroit.

3.  The applicant provides:

* a letter from City of Detroit Department of Police, dated 11 September 2009
* a unit citation from Wackenhut Corporation
* two certificates of appreciation for his service at the Comerica Bank, Detroit, MI
* his DD Form 214 (Report of Separation from Active Duty) with an effective date of 17 April 1975

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 at 18 years of age on 15 August 1974 for a period of 2 years.  He completed basic combat training and AIT and he was awarded military occupational specialty 76P (Stock Control and Accounting Specialist).

3.  He accepted nonjudicial punishment (NJP) on:

* 3 February 1975 for being AWOL from on or about 10 January to on or about 23 January 1975
* 10 March 1975 for being AWOL from on or about 4 February to on or about 24 February 1975

4.  The applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37, with a general discharge characterized as under honorable conditions.  The commander stated the reasons for his proposed action were:

* based on a review of the applicant's record and his performance during AIT, he was unacceptable for further military service due to his lack of personal motivation and responsibility
* he had been AWOL twice from his unit and showed no remorse
* his conduct and attitude had rapidly deteriorated

5.  The applicant was advised he had the right to decline this discharge, but if subsequent misconduct indicates that such action is warranted, he may be subjected to disciplinary or administrative separation procedures under other provisions of law or regulation.

6.  He was further advised that if he received a general discharge, he may expect to encounter substantial prejudice in civilian life.  The commander also advised the applicant:

* of his right to consult with an officer of the Judge Advocate General's Corps prior to completing his acknowledgements
* of his right to submit a statement in his own behalf
* he would not be permitted to apply for enlistment in the U.S. Army within 2 years from his date of separation

7.  The applicant acknowledged he was notified of the proposed discharge action and voluntarily consented to the discharge.  He did not submit statements in his own behalf.

8.  On 3 April 1975, the appropriate authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 5-37, and directed the issuance of a General Discharge Certificate.

9.  On 17 April 1975, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-37, with a general discharge.  He completed 7 months of total active service that was characterized as under honorable conditions.  He had 33 days of lost time.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 28 August 1990, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined the applicant's discharge was proper and equitable and was properly characterized as under honorable conditions.

11.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37 provided for the discharge of enlisted personnel who demonstrated they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  The regulation provided that no individual would be discharged under this provision unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either an honorable or a general discharge.

12.  Army Regulation 635-200, paragraph 3-7a, states 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 applicant's age at time of enlistment was noted.  However, many Soldiers enlisted at a young age, many of whom were married or got married soon after their enlistment, and went on to complete their enlistments and receive honorable discharges.  Therefore, the age or the marital status of the applicant cannot be used as a reason to change a properly-issued discharge.

2.  Within 5 months of the date of his enlistment he had two periods of AWOL totaling 33 days of lost time, for both of which he received NJP.  Therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  The evidence shows he was properly and equitably discharged in accordance with regulations in effect at the time.  His commander notified him of the reasons and the type of discharge he was recommending.  He voluntarily consented to the proposed discharge.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

4.  The applicant's post-service achievements and conduct are noted.  However, good post-service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

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 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)                                         AR20100029144



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ABCMR Record of Proceedings (cont)                                         AR20100029144



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