RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060011917 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Larry W. Racster

Member

Mr. Rodney E. Barber

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, in effect, that his general discharge under honorable conditions be upgraded to an honorable discharge.  

2.  The applicant states, in effect, that he was not aware that there was a 3-year time limit on applying for the upgrade of his discharge.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 23 June 1977, the date of his discharge.  The application submitted in this case is dated 10 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’s military service records show that he enlisted in the U.S. Army Reserve on 13 September 1976 and entered active duty in the Regular Army for a period of 4 years on 23 September 1976.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 76Y (Unit/Organization Supply Specialist) and was then assigned to Headquarters and Headquarters Company, 1st Battalion,
19th Infantry, 25th Infantry Division, Schofield Barracks, Hawaii.  The highest rank the applicant attained was private/pay grade E-2.

4.  The applicant's military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 18 May 1977.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about 3 May 1977, willfully disobeying a lawful command from a superior commissioned officer.  The punishment imposed was forfeiture of $50.00 (suspended until 4 July 1977) and 14 days extra duty.
5.  The applicant's military service records contain a copy of a DA Form 2627, dated 7 June 1977.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about
10 May 1977, willfully disobeying a lawful command from a superior commissioned officer.  The punishment imposed was reduction to the grade of private (E-1), forfeiture of $87.00, and 14 days extra duty.

6.  The applicant's military service records show that during the period
5 April 1977 through 18 May 1977 he was counseled on at least 10 occasions for missing formation, failure to follow instructions, leaving his place of duty, disrespect to a noncommissioned officer, being out of proper uniform, and failure to repair.

7.  On 15 June 1977, the applicant was notified by his unit commander that separation action under the Expeditious Discharge Program contained in paragraph 5-37 of Army Regulation 635-200 was being initiated against him and that a general discharge was being recommended.  The reasons for the separation action cited by the unit commander were the applicant’s poor attitude and hostility towards the military service, as evidenced by his total disregard for instructions and belligerent actions toward officers and noncommissioned officers; lack of motivation, as evidenced by his inefficient duty performance and being late for formations; and lack of self-discipline, as evidenced by the necessity of having to be constantly reminded to stay in proper uniform.  The applicant was also informed that he had the right to decline the discharge and to submit statements in his own behalf.

8.  The applicant acknowledged that he had received the separation notification and indicated that he was voluntarily accepting discharge from the Army and he waived his right to submit a statement in his own behalf.  The applicant also acknowledged that he understood that if he received a general discharge, he could expect to encounter substantial prejudice in civilian life and acknowledged that he had been provided the opportunity to consult with a Judge Advocate General Corps officer.  

9.  The applicant’s unit commander completed a second endorsement forwarding the separation action to the approving authority.  On 16 June 1977, the separation authority approved the separation action and directed that the applicant receive a general discharge.  Accordingly, the applicant was discharged on 23 June 1977.


10.  The DD Form 214, issued to the applicant on the date of his discharge, confirms that he was separated under the provisions of paragraph 5-37, Army Regulation 635-200, by reason of the Expeditious Discharge Program.  This document also shows that at the time of his discharge the applicant had completed a total of 9 months and 1 day net active service.  

11.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, paragraph 5-37, then in effect, provided the policy and outlined the procedures for separating individuals under the Expeditious Discharge Program.  The Expeditious Discharge Program provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.  An honorable discharge or general discharge could be issued under this program.  

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.  Whenever there is doubt, it is to be resolved in favor of the individual.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his general discharge under honorable conditions should be upgraded to an honorable discharge despite the fact that he did not apply within the 3-year statute of limitations.  The applicant’s contentions were carefully considered; however, he provides insufficient evidence in support of his claim.

2.  When an applicant submits an application to either the ABCMR or the Army Discharge Review Board requesting a change in discharge, the case is decided on its own merits.  Changes may be warranted if the Board determines that the characterization of service and/or the reason for discharge were improper or inequitable.

3.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met and the applicant’s rights were protected throughout the separation process.  The evidence of record further confirms that the applicant voluntarily consented to the discharge and that his discharge accurately reflects his relatively short and undistinguished record of service.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 June 1977; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
22 June 1980.  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

___MKP _  ___LWR_  ___REB _  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.




____Margaret K. Patterson_____
          CHAIRPERSON




INDEX

CASE ID
AR20060011917
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/15
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19770623
DISCHARGE AUTHORITY
AR 635-200, Paragraph 5-37
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.