RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 April 2007
	DOCKET NUMBER:  AR20060012610 


	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.


x
	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, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, that he was given a blanket party, which was never investigated.  

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 that occurred on 16 January 1976.  The application submitted in this case is dated 
8 September 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 record shows that he enlisted in the Regular Army and entered active duty on 22 October 1974, at the age of 17.  He successfully completed basic combat training at Fort Polk, Louisiana, and advanced individual training (AIT) at Fort Sill, Oklahoma.  Upon completing of AIT, he was awarded military occupational specialty (MOS) 17A (Combat Surveillance & Target Acquisition Crewman).  

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he was promoted to private first class (PFC) on 24 April 1975, and that this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private/E-1 (PV1) for cause, on 30 December 1975.  

5.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  It does reveal a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 20 December 1975, for willfully disobey a lawful order from his superior commissioned officer on or about 18 December 1975.

6.  On 23 December 1975, his unit commander notified the applicant of his intent to initiate action to separate him under the provisions of the Expeditious Discharge Program (EDP), and that he was recommending the applicant receive a GD.  The unit commander cited his reasons for his proposed action were the applicant's substandard performance, constant failure to obey a lawful order by his superiors, and a pending Field Grade Article 15.

8.  The applicant acknowledged the notification in writing and indicated that he voluntarily consented to this discharge.  He further acknowledged that he understood that if he received a GD, he could expect to encounter substantial prejudice in civilian life, and he acknowledged that he had been afforded the opportunity to consult with legal counsel.  The applicant also elected not to make a statement in his own behalf.  

9.  On 13 January 1976, the separation authority approved the applicant’s separation under the provisions of the EDP, and directed the applicant receive a GD.  On 16 January 1976, the applicant was separated accordingly.  The 
DD Form 214 he was issued shows he was separated under the provisions of paragraph 5-37, Army Regulation 635-200 (EDP) after completing 1 year, 
2 months, and 25 days of creditable active military service.  

10.  There is no indication in the record that the applicant applied for an upgrade of his discharge to the Army Discharge Review Board within its 15-year statute of limitations.  

11.  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 EDP.  The EDP provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.  An HD or GD could be issued under this program.  


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant's separation processing under the provisions of the EDP was accomplished in accordance with the applicable regulation, and that the applicant voluntarily consented to the discharge and elected not to make a statement in his own behalf.  All requirements of law and regulation met, and his rights were fully protected throughout the separation process.  

2.  The applicant's record reveals a disciplinary history that clearly diminished the quality of his service below that meriting a fully honorable discharge.  Therefore, absent any evidence of error or injustice, there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.  

3.  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.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 16 January 1976, the date of his separation. Therefore, the time for him to file a request for correction of any error or injustice expired on 15 January 1979.  He failed to 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

_x __  __x __  __x_  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.




_____x_____
          CHAIRPERSON




INDEX

CASE ID
AR20060012610
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/05
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
1976/01/16
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON
EPD
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110
2.

3.

4.

5.

6.