RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 November 2005
	DOCKET NUMBER:  AR20050001468


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Carl W. S. Chun

Director

Mr. Robert J. McGowan

Analyst

The following members, a quorum, were present:


Mr. Thomas D. Howard, Jr.

Chairperson

Mr. John Infante

Member

Ms. Carmen Duncan

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, 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 young and immature and suffered a "culture shock" upon entering the Army.  He states he was accused of theft of a fellow Soldier's property, but he was only 'playing a prank" on a very close friend.  He believes his General discharge is an injustice.

3.  The applicant provides nothing in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 7 October 1980.  The application submitted in this case is dated 11 January 2005.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was born 11 June 1956 and enlisted in the Regular Army for 3 years on 27 February 1980.  He was 23 years of age.

4.  The applicant completed One Station Unit Training (OSUT) at Fort Sill, Oklahoma.  He was awarded military occupational specialty (MOS) 13B, Cannon Crewman.  He was assigned to Fort Stewart, Georgia with duty in his MOS.

5.  The applicant was a poor Soldier.  At Fort Stewart, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for disobeying the lawful order of a noncommissioned officer (NCO) on 8 September 1980.  As punishment, he forfeited $105.00 pay per month for 1 month, and performed 14 days of extra duty and restriction.  On 14 September 1980, he absented himself from his unit without proper authority (AWOL) and did not return until 15 September 1980.

6.  On 17 September 1980, the applicant's commander initiated action to separate him under the Army's expeditious discharge program (EDP).  The action was taken because of the applicant's "… lack of motivation and negative attitude toward training.  You have no desire to complete your military obligation and counseling has not improved your situation."

7.  On 22 September 1980, the applicant acknowledged notification and consented to separation.  He did not submit a statement in his own behalf.  On 22 September 1980, the applicant's EDP discharge was approved by the acting battalion commander, a major.

8.  On 7 October 1980, the applicant was discharged under honorable conditions in pay grade E-2 under the provisions of Army Regulation (AR) 635-200, paragraph 5-31h(1) after completing 7 months and 10 days of creditable active service with 1 day of lost time.  His DD Form 214 shows the narrative reason for separation as, "Expeditious Discharge Program (EDP).  (Failure to maintain acceptable standards for retention).”  He signed the DD Form 214.

9.  There is no record of the applicant petitioning the Army Discharge Review Board (ADRB) seeking a discharge upgrade within that board's 15-year statute of limitations.

10.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  At the time, the pertinent paragraph in chapter 5 provided that members who had completed at least 6 months, but less than 36 months of continuous active service on their first enlistment, and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential could be discharged.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  The regulation placed discharge authority at the special court-martial convening authority level (i.e., battalion commander).

DISCUSSION AND CONCLUSIONS:

1.  The applicant was 23 years old when he entered the Army and 24 years old when he was separated; he may have been immature, but he certainly was not "young."

2.  The applicant was a substandard Soldier who disobeyed orders and departed his unit in an AWOL status.  He was separated for failure to maintain acceptable standards.  Nothing in his record shows that he was accused of theft.

3.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  It is noted that the applicant agreed to his separation under the EDP and signed his DD Form 214.  The character of his discharge is commensurate with his overall record of military service.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 October 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 October 1983.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__tdh___  __ji____  ___cd___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations 

prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.



						Thomas D. Howard, Jr.
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20050001468
SUFFIX

RECON

DATE BOARDED
20051103
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19801007
DISCHARGE AUTHORITY
AR 635-200 C5
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0000
2.

3.

4.

5.

6.