RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 June 2007
      DOCKET NUMBER:  AR20070001090


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dean A. Camarella             |     |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, under honorable
conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that when he applied for a Department
of Veterans Affairs (VA) grant for school, he was denied because he had a
GD.

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 24 July 1980, the date of his discharge.  The application
submitted in this case is dated 10 January 2007.

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 2 August 1979.  He successfully completed One
Station Unit Training (OSUT) at Fort Gordon, Georgia.  Upon completion of
OSUT, he was awarded military occupational specialty (MOS) 36C (Wire System
Operator).

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he
was advanced to private/E-2 (PV2) on 2 February 1980, and that this is the
highest rank he attained while serving on active duty.  His record
documents no acts of valor, significant achievement, or service warranting
special recognition.

5.  The record does show that on 20 May 1980, the applicant accepted
non-judicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) for being disrespectful in language
toward a noncommissioned officer.  His punishment for this offense was a
reduction to private/E-1 (PV1) and forfeiture of $104.00, which were
suspended; and 14 days of extra duty and restriction.
6.  The record also shows the applicant was formally counseled by members
of his chain of command on six separate occasions for various disciplinary
infractions.

7.  On 2 July 1980, 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 the applicant’s poor attitude,  lack of
motivation, lack of self-discipline, inability to adapt socially and
emotionally to the military environment, and his failure to demonstrate
promotion potential as the reasons for taking the action.

8.  On 8 July 1980, the applicant acknowledged the notification in writing
and indicated that he voluntarily consented to the recommended EDP
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 9 July 1980, the separation authority approved the applicant’s
separation under the provisions of the EDP, and directed the applicant
receive a GD.  On
24 July 1980, the applicant was discharged accordingly.  The separation
document (DD Form 214) he was issued shows he was separated under the
provisions of paragraph 5-31, Army Regulation 635-200 (EDP) after
completing 11 months and 23 days of active military service.

10.  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.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 5, paragraph 5-31, 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 applicant's contention that his discharge should be upgraded
because he was denied VA benefits was carefully considered.  However, this
factor alone is not sufficiently mitigating to support granting the
requested relief.
2.  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.

3.  The applicant's record reveals an extensive 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.

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 24 July 1980, the date of his
discharge. Therefore, the time for him to file a request for correction of
any error or injustice expired on 23 July 1983.  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

__JTM___  __WFC _  __DAC __  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.




                                  _____John T. Meixell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070001090                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/06/28                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1980/07/24                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |EDP                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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