IN THE CASE OF:	  

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110013282 


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 his general discharge (GD) under honorable conditions be upgraded to an honorable discharge (HD).

2.  The applicant states he was told his discharge would automatically be upgraded after 1 year.  He has been given the run-around all these years causing him to periodically give up.  He states he is mentally ill.

3.  The applicant indicates he provides an award letter from the Social Security Administration; however no letter was included 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's record shows he enlisted in the Regular Army on 1 May 1984 and was trained in and awarded military occupational specialty 13B (Cannon Crewman).  He was advanced to the rank/grade of private/E-2 on 1 November 1984 and this is the highest rank/grade he attained while serving on active duty.

3.  The applicant's record shows he was awarded the Army Service Ribbon, Expert Marksmanship Qualification Board with Hand Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.

4.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on the following four separate occasions for the offenses indicated:

	a.  31 January 1985, for being absent without leave (AWOL) from 3 to 4 January 1985;

	b.  13 March 1985, for failing to go to his appointed place of duty at the time prescribed on 2 March 1985;

	c.  25 May 1985, for breaking restriction; and

	d.  14 August 1985, for failing to go to his appointed place of duty at the time prescribed on 11 July 1985 and for being AWOL from 18 to 19 July 1985 and from 2 to 5 August 1985.

5.  On 10 June 1985, the unit commander initiated a bar to reenlistment against the applicant based on his record of NJP and his demonstrated apathy and refusal to adapt to discipline.  The bar to reenlistment was approved on 22 July 1985.

6.  On 7 August 1985, the unit commander notified the applicant that he intended to initiate action to separate him under the provisions of Army Regulation 
635-200, chapter 13, by reason of unsatisfactory performance.  The unit commander cited the applicant's record of NJP as the basis for taking the action.

7.  On 13 August 1985, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation and its effects and of the rights available to him.

8.  On 19 August 1985, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and directed the applicant receive a GD.

9.  On 16 September 1985, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant at the time shows he held the rank of private/E-1 and he completed a total of 1 year, 4 months, and 10 days of creditable active military service and had accrued 5 days of lost time due to AWOL.

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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.

	b.  Paragraph 3-7a provides that an HD 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 request to upgrade his discharge because he was told his discharge would automatically be upgraded after 1 year has been carefully considered.  However, the Army does not now have nor has it ever had a policy providing for automatically upgrading discharges based solely on the passage of time.  A discharge may be upgraded by the ADRB or this Board if there is evidence of error or injustice.  No such evidence exists in this case.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His disciplinary history includes his acceptance of NJP on four separate occasions.  This record of misconduct clearly diminished the overall quality of his service below that meriting a fully HD.  As a result, his record did not support the issuance of an HD by the separation authority at the time and does not support an upgrade now.

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)                                         AR20110013282



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ABCMR Record of Proceedings (cont)                                         AR20110013282



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