RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 June 2007
	DOCKET NUMBER:  AR20060017812 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Margaret Patterson

Chairperson

Mr. Ronald Gant

Member

Mr. Rowland Heflin

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.

2.  The applicant states, in effect, that he was having marital problems at the time in question.  He contends that his wife and child were with him in Germany, that he spent a lot of time on maneuvers, and that each time he returned from a maneuver his wife told him that she was cheating on him.  He states that there were times when he would not see his wife for days after he returned to base, that she would leave their daughter with friends, and that his wife was driving him crazy playing head games.  He further states that he did not want his daughter to live in that environment so he wanted out of the service so he could get full custody of her.     

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 20 July 1974.  The application submitted in this case is dated 19 November 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 enlisted on 18 January 1973 for a period of 4 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty (MOS) 11E (armor crewman).    

4.  On 3 May 1974, nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of a reduction to E-2 (suspended) and extra duty.  On 17 May 1974, the suspended portion of the punishment was vacated.

5.  On 18 June 1974, the applicant was notified of his pending separation under the Expeditious Discharge Program.  The unit commander cited that the applicant had received one Article 15, that his job performance was below average, that he was apathetic toward his job and the Army, that he continued to demonstrate very immature behavior, that the suspended reduction on his Article 15 was vacated due to continued misconduct, and that he (the unit commander) had received two letters of indebtedness from his creditors.  The unit commander recommended that the applicant receive a general discharge.

6.  On 18 June 1974, the applicant acknowledged notification of his proposed discharge, voluntarily consented to discharge from the Army, and elected not to make a statement on his behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if issued a general discharge and that he had been provided an opportunity to consult with counsel.

7.  On 19 June 1974, the unit commander recommended that the applicant be separated under the Expeditious Discharge Program for unsuitability by reason of apathy, defective attitudes and inability to expend effort constructively.  This letter also shows the applicant was counseled 15 times.

8.  The separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

9.  Accordingly, the applicant was discharged on 20 July 1974 with a general discharge under the provisions of Army Regulation 635-200 under the Expeditious Discharge Program for unsuitability due to apathy.  He had served 
1 year, 6 months, and 3 days of total active service.

10.  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. 
 
11.  Army Regulation 635-200, in effect at the time, set forth 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.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  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.

12.  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.  

DISCUSSION AND CONCLUSIONS:

1.  Marital problems are not normally grounds for upgrading a discharge. 

2.  The applicant's separation under the Expeditious Discharge Program was voluntary and the evidence shows he voluntarily consented to the discharge.

3.  The applicant's record of service included 15 counseling statements and one nonjudicial punishment.  As a result, 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 service is insufficiently meritorious to warrant an honorable discharge.
  
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 20 July 1974; therefore, the time for the applicant to file a request for correction of any injustice expired on 19 July 1977.  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

MP____  __RG____  _RH_____  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 Patterson__
          CHAIRPERSON




INDEX

CASE ID
AR20060017812
SUFFIX

RECON

DATE BOARDED
20070614
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19740720
DISCHARGE AUTHORITY
AR 635-200  
DISCHARGE REASON
Expeditious Discharge Program
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.