RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060012149 


	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.


	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 his discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, he was too young and inexperienced to have accepted a discharge under honorable conditions, not knowing the consequences he would encounter for the rest of his life.  The applicant further states the time he did spend in the Army prepared him to be an honorable and responsible person.

3.  The applicant provides a copy of a letter of appreciation from his platoon sergeant, an undated letter of introduction, a Certificate of Completion for a Pre-Apprenticeship Training Program, and his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 30 July 1981.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 30 July 1981, the date of his discharge.  The application submitted in this case is dated 14 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 records show he enlisted on 18 November 1980 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 12B (combat engineer).

4.  On 9 March 1981, the applicant was assigned to the 588th Engineer Battalion at Fort Polk, Louisiana.

5.  The records contain formal counseling statements, dated from 15 April to 
24 June 1981, wherein the applicant was counseled concerning his poor performance.

6.  A letter from the applicant’s commander, dated 21 July 1981, notified the applicant that he was initiating action to discharge the applicant under the provisions of paragraph 5-31 (Expedition Discharge Program) (EDP) of Army Regulation 635-200 (Personnel Separations).  The commander stated the applicant was a substandard Soldier who was very hostile toward the military.  The commander further stated the applicant’s poor attitude contributed to his inability to adjust to military life and that he was unable to adjust socially and emotionally to military life.  The commander also stated the applicant lacked motivation, self-discipline, and promotion potential.  The commander stated he was recommending the applicant’s service be characterized as under honorable conditions.

7.  The commander's letter advised the applicant that the type of discharge he would be issued rests with the discharge authority and that if he received a general discharge he may expect to encounter substantial prejudice in civilian life.  The commander also advised the applicant of his right to consult with an officer of the Judge Advocate General’s Corps prior to completing his acknowledgements, his right to decline this discharge, and his right to submit a statement in his own behalf.

8.  On 21 July 1981, the applicant acknowledged notification of his proposed discharge, voluntarily consented to be discharged, and waived his right to submit a statement.  The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

9.  On 21 July 1981, the applicant’s commander recommended the applicant for discharge in accordance with paragraph 5-31 of Army Regulation 635-200 due to the applicant’s hostility toward the Army, his lack of self-discipline, and his inability to adapt to the social or emotional requirements of the Army.   The commander further stated the applicant does not cooperate well with his peers or superiors, lacks motivation, and has failed to demonstrate any promotion potential.  The commander recommended that the applicant not be transferred to the Individual Ready Reserve (IRR) and that he be issued a General Discharge Certificate.

10.  On 21 July 1981, the appropriate authority approved the applicant’s expeditious discharge, directed that the applicant not be transferred to the IRR, and that he be furnished a General Discharge Certificate.

11.  On 30 July 1981, the applicant was discharged under the provisions of paragraph 5-31 of Army Regulation 635-200.  He had completed 8 months and 13 days of active service that was characterized as under honorable conditions.  
12.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

13.  Army Regulation 635-200, then in effect, set for the basic authority for the separation of enlisted personnel.  Paragraph 5-31 of this regulation provided for the discharge of enlisted personnel who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army, because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  The regulation provides that no individual will be discharged under this program unless the individual voluntarily consents to the proposed discharge.  Individuals discharged under this regulation were issued either a general or honorable discharge.

14.  Army Regulation 635-200, then in effect, provides that those Soldiers processed under the EDP may be released from active duty and transferred to the IRR to complete their military obligation if deemed to have the potential for service under conditions of full mobilization.  Soldiers deemed to have no potential for useful service under conditions of full mobilization were to be discharged.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The applicant’s commander notified him of the reasons and the type of discharge the commander was recommending.  The applicant voluntarily consented to the proposed discharge.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

2.  The applicant's post-service achievements and conduct are noted.  However, good post-service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

3.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's discharge under honorable conditions.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 July 1981, the date of his discharge; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 July 1984.  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

___lmd__  ___dkh __  ____kan_  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.




_______Kathleen A. Newman_____
          CHAIRPERSON




INDEX

CASE ID
AR20060010149
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070320
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.