RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 December 2007
	DOCKET NUMBER:  AR20070010339 


	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. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Ms. Kathleen Newman

Chairperson

Ms. Rose Lys

Member

Mr. Edward Montgomery

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 discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was not a disruption to his unit chain of command rather he did not like his military occupational specialty (MOS) nor his duty assignment and its location.  He states, in effect, his recruiter told him that he would not have to serve an overseas tour of duty.  However, as soon as he graduated from advanced individual training he received orders for Germany.  He states, in effect, that adjustments are naturally difficult and he was not able to function the way he needed to in order to do well.  He further states, in effect, that he respected his chain of command, his superior officers and that he carried himself in a military manner.  

3.  The applicant did not provide any supporting documentation with his application. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he enlisted on 18 June 1981 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the MOS 75B (Personnel Administrative Specialist).

3.  On 26 October 1982, the applicant was assigned to Headquarters and Headquarters Company, 23rd Engineer Battalion located in the Federal Republic of Germany.

4.  On 11 May 1982, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violation of Articles 86 and 92 of the UCMJ specifically for failure to go to his appointed place of duty on 4 May 1982 and 5 May 1982, and for dereliction of duty.  His punishment was forfeiture of $144.00 and reduction to the grade of E2, which was suspended. 

5.  On 17 March 1982, the company commander notified the applicant that he was initiating action to discharge the applicant under the provisions of paragraph 5-31 (Expeditious Discharge Program) (EDP) of Army Regulation 635-200 (Personnel Separations).  The commander stated the applicant lacked motivation and promotion potential.  The commander stated he was recommending the applicant’s service be characterized as under honorable conditions.

6.  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.

7.  On 27 April 1992, 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.

8.  On 5 May 1982, 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 lack of motivation and failure to demonstrate 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.

9.  On 14 May 1982, the appropriate authority approved the applicant’s expeditious discharge and that he be furnished a General Discharge Certificate.

10.  On 1 June 1982, the applicant was discharged under the provisions of paragraph 5-31 of Army Regulation 635-200.  He had completed 7 months and 10 days of active service that was characterized as under honorable conditions.  

11.  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.

12.  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.

13.  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 for his recommendation 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.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's general discharge.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KN  ___  __RL ___  ___EM__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





____Kathleen Newman______
          CHAIRPERSON




INDEX

CASE ID
AR20070010339
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071206
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.
144.0100
2.

3.

4.

5.

6.