RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2007
	DOCKET NUMBER:  AR20060011366 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Marla Troup

Chairperson

Mr. John Heck

Member

Mr. Donald Lewy

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 general discharge be upgraded to honorable.  He also requests, in effect, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he entered active duty on 
26 August 1980 and completed his Reserve obligation on 25 August 1986.  

2.  The applicant states that there is no error.  He contends that he was given the opportunity to get out of the service without prejudice or consequence and he did so.  He states that had he not been so young and stupid he would have followed his dream of being a 20-year man as his father before him.

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 9 June 1982.  The application submitted in this case is dated 3 August 2006.

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 on 1 March 1962.  He enlisted in the U.S. Army Reserve under the delayed entry program on 10 December 1979 for a period of 6 years.  On 26 August 1980, he enlisted in the Regular Army for a period of 4 years.  He successfully completed One Station Unit Training in military occupational specialty 62E (heavy construction equipment operator).   

4.  On 22 November 1980, nonjudicial punishment was imposed against the applicant for disobeying a lawful order.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.     

5.  On 14 May 1981, nonjudicial punishment was imposed against the applicant for wrongful appropriation.  His punishment consisted of a reduction to E-1 (suspended), a forfeiture of pay (suspended), and extra duty. 

6.  On 5 August 1981, nonjudicial punishment was imposed against the applicant for possessing marijuana.  His punishment consisted of a reduction to E-2, a forfeiture of pay (suspended), restriction, and extra duty.    

7.  On 27 January 1982, the applicant was counseled for failure to repair.

8.  On 1 June 1982, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, paragraph 5-31, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  The unit commander recommended separation with a general discharge and cited the applicant's poor attitude, lack of motivation, and lack of self-discipline. 

9.  On 1 June 1982, the applicant acknowledged that he had been advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 5.  He also acknowledged that if he were issued a general discharge he might expect to encounter substantial prejudice in civilian life and he elected not to make a statement on his own behalf.

10.  On 4 June 1982, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

11.  Accordingly, the applicant was released from active duty on 9 June 1982 with a general discharge under the provisions of Army Regulation 635-200, paragraph 5-31, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  He was transferred to the USAR Control Group (Annual Training).  He had served 1 year, 9 months, and 14 days of total active service.  Item 12i (Reserve Obligation Termination Date) on his DD Form 214 shows the date 25 August 1986.  Orders, dated 25 August 1986, show the applicant was discharged from the Ready Reserve with a general discharge.

12.  There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. 

13.  Army Regulation 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel.  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 may be discharged.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

14.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 

15.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part it states that the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  The applicant was 18-years old when he enlisted and he successfully completed One Station Unit Training.    

2.  The DD Form 214 is a "snapshot in time" and is a reflection of the applicant's record of active Army service at the time of his separation from active duty.  Since the applicant was discharged from the Ready Reserve in 1986, four years after his release from active duty, there is no basis for amending his DD Form 214 to show he completed his Reserve obligation on 25 August 1986.

3.  Since the applicant's record of service included three nonjudicial punishments, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of active duty service is insufficiently meritorious to warrant an honorable discharge. There is insufficient evidence to show his service in the USAR warrants upgrading his USAR discharge to fully honorable. 
  
4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

6.  Records show the applicant should have discovered the alleged injustice now under consideration on 9 June 1982; therefore, the time for the applicant to file a request for correction of any injustice expired on 8 June 1985.  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

MT_____  _JH_____  _DL_____  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.


__Marla Troup_________
          CHAIRPERSON


INDEX

CASE ID
AR20060011366
SUFFIX

RECON

DATE BOARDED
20070221
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19820609
DISCHARGE AUTHORITY
AR 635-200, paragraph 5-31
DISCHARGE REASON
Expeditious Discharge Program
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.
100.0200
3.

4.

5.

6.