IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110019366 


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 out processing personnel indicated his discharge would be upgraded to an honorable discharge after 6 months.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 7 November 1979.

3.  His record reveals a disciplinary history that includes numerous Training and Doctrine Command (TRADOC) Forms 871-R (Troop Discharge Counseling) documenting adverse counseling sessions for committing the following offenses:

* being absent without leave (AWOL)
* suspicion of drug possession and usage
* disobeying a lawful order
* disrespecting a drill sergeant

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on (UCMJ) on 16 April 1980 for being AWOL from 5 to 15 April 1980.

5.  On 15 May 1980, the applicant was notified by his commander that he was being considered for separation under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsuitability.  The applicant's commander indicated his recommendation was based on the applicant's inaptitude.

6.  On 21 May 1980, he was advised by consulting counsel of the rights available to him and the effects of a general discharge.  He was informed that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He was advised of his right to counsel, his right to an administrative hearing by a board of officers, his right to submit a statement in his own behalf, and his right to be represented by counsel at a hearing.  He was also advised of the effects of any action taken by him in waiving his rights.  The applicant subsequently waived his rights and elected not submit a statement in his own behalf.

7.  On 29 May 1980, the applicant's intermediate commander recommended approval of his separation under the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability.

8.  On 16 June 1980, the separation authority waived further rehabilitative efforts and directed that the applicant be separated for apathy with issuance of a general discharge.


9.  On 19 June 1980, he was discharged accordingly.  The DD Form 214 he was issued at the time shows:

* his service was characterized as under honorable conditions (general)
* he was discharged under the provisions of Army Regulation 635-200, chapter 13
* he was AWOL from 5 to 14 April 1980

10.  There is no evidence showing out processing personnel told him his discharge would be upgraded to an honorable discharge 6 months after his discharge.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of the regulation in effect at the time provided for separation due to inaptitude, personality disorder, apathy, and homosexuality (tendencies, desires, or interest but without overt homosexual acts).  The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions.

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 applicant contends his general discharge should be upgraded to an honorable discharge.

2.  His record reveals a disciplinary history that includes numerous adverse counseling statements and his acceptance of NJP under Article 15, UCMJ for being AWOL.

3.  There is no evidence of record and the applicant did not provide any evidence that indicates he was told his discharge would be upgraded 6 months after his discharge.

4.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the Army Discharge Review Board (ADRB) within its
15-year statute of limitations or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, it is concluded the applicant's discharge was proper and equitable and it accurately reflects his overall record of service.

5.  In view of the forgoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110019366



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110019366



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1