RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 January 2008
	DOCKET NUMBER:  AR20070012130 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Donald W. Steenfott

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 an upgrade of his discharge. 

2.  The applicant states that he does not believe he should have received a general discharge and that, although he was depressed and under stress at the time, his service was honorable.

3.  The applicant provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 4 December 1980, in support of 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 records show that he enlisted in the Regular Army on 15 January 1980 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63B (Power Generator and Wheel Vehicle Mechanic).  The highest rank he attained during his military service was private/E-2.  

3.  The applicant’s records further show that, upon completion of advanced individual training, he was assigned to Headquarters and Service Battery, 2nd Battalion, 17th Field Artillery, Fort Sill, Oklahoma, on 3 June 1980.

4.  On 22 August 1980, the applicant underwent a mental health evaluation at the Fort Sill Community Mental Health Activity, Fort Sill, Oklahoma.  The military doctor stated that the applicant related to him that he wanted out of the Army and that both of his parents were ill and could not work.  The applicant felt a need to care for his family and that since his siblings were always in trouble, he constantly worried about his family.
5.  On 14 October 1980, the applicant underwent a second mental status evaluation, requested by his unit first sergeant.  The military doctor stated that the applicant related to him that he could not cope with the military.  The military doctor also stated that the applicant took some pills the day before, was depressed, and appeared to have had a bad attitude toward military retention.  The applicant also related to the military doctor that he had a low tolerance when under stress and that he had nerve problems prior to enlisting.  The military doctor concluded that the applicant was unlikely to become a productive Soldier and should be considered for separation.

6.  On 20 November 1980, the applicant’s immediate commander notified him that he was initiating action to discharge him under the provisions of chapter 5 of Army Regulation 635-200 (Personnel Separation), Expeditious Discharge Program.  The immediate commander cited the applicant’s inability to adapt and adjust to military life, constant disciplinary and emotional problems, and substandard performance (caused by personal problems).  The immediate commander recommended a General Discharge Certificate.

7.  On 26 November 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation, the effect on future enlistment in the Army, the possible effects of a general discharge and of the procedures and rights that were available to him.  The applicant declined making a statement and waived his separation physical.

8.  On 1 December 1980, the separation authority approved the applicant's discharge and directed that he receive a General Discharge Certificate.  On 4 December 1980, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was discharged under honorable conditions in accordance with paragraph 5-31h(2) of Army Regulation 635-200, for failure to maintain acceptable standards of retention (Expeditious Discharge Program).  This form further shows that the applicant completed 10 months and 20 days of creditable military service.

9.  There is no evidence showing that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, then in effect, set forth the conditions under which enlisted personnel could be discharged, released from active duty or active duty 
for training, or released from military control, for the convenience of the Government.  Paragraph 5-31 provided the policies and procedures for separating enlisted personnel under the Army's Expeditious Discharge Program.

11.  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.  The applicant contends that his discharge should be upgraded. 

2.  Evidence of record shows that the applicant's separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons for that separation were appropriate considering all of the facts of the case. 

3.  There is no evidence in the available records and the applicant has provided no evidence that shows irregularity, injustice, or inequity in his separation.  In order to justify correction of a military record the applicant must show, 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.  In view of the foregoing, there is no basis for granting the applicant's request

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __jlp___  __dws___  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.



							William D. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070012130
SUFFIX

RECON

DATE BOARDED
20080110
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
19801204
DISCHARGE AUTHORITY
AR 635-200, chap 5
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.