RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 February 2008
	DOCKET NUMBER:  AR20070013477 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Kathleen Newman

Chairperson

Mr. Jose A. Martinez 

Member

Ms. Susan A. Powers

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 this general discharge, under honorable conditions, be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that his general discharge should be upgraded to an honorable discharge. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a copy of a letter from the Army Review Boards Agency, Support Division, St. Louis, dated 20 September 2007; a copy of his DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in support of his request.

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 record shows he enlisted in the Regular Army on 9 September 1980.  He successfully completed basic combat training and advanced individual training at Fort Bliss, Texas.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS) 16R (Air Defense Artillery Short Range Gunnery Crewman).  He was promoted to pay grade E-2 on 27 March 1981.

3.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification Record), shows that he was confined by civil authorities (CCA) for 4 days from 25 May 1981 to 28 May 1981.  


4.  Item 27 (Remarks), of his DA Form 2-1, revealed that he was confined by civil authorities for shoplifting.  He was tried and was fine $204.47 and placed on 12 months probation.  He was released on 29 May 1981.

5.  Item 18 (Remarks), of the applicant's DA Form 2-1, shows he was reduced from PV2 to PV1 on 13 January 1982.  The specific reason for his reduction in pay grade is not known.

6.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's record contains a copy of his DD Form 214 (Report of Separation from Active Duty) which shows that he entered active duty on 9 September 1980 and was discharged under the provisions of Army Regulation 635-200, chapter   5-31, Expeditious Discharge Program (EDP), on 28 January 1982, in the pay grade of E-1, under honorable conditions.  He was furnished a general discharge.  The Separation Program Designator (SPD) shown as the reason for his discharge is "JGH."  This SPD is applied to the separation document of those individuals who are involuntarily discharged under the EDP for failure to maintain acceptable standards for retention.  On his discharge date, he had a total of 1 year, 4 months, and 16 days of creditable service and 4 days of time lost due to CCA.

7.  The applicant applied to the Army Discharge Review Board (ADRB) on 9 September 2007 for an upgrade of his discharge.  However, the ADRB was precluded from accepting his application due to its statue of limitations   (15 years).  This Board accepted his application (DD Form 149, Application for Correction of Military Records), dated 23 September 2007.

8.  The Department of the Army began testing the EDP in October 1973.  In a message, dated 8 November 1974, the Deputy Chief of Staff for Personnel announced the expansion of the EDP.  The program provided, for the separation of Soldiers whose acceptability, performance of duty, and/or potential for continued effective service fell below the standards required for retention in the US Army.  Soldiers could be separated under this program when subjective evaluation or their commander identified them as lacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.

9.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

2.  All the facts and circumstances pertaining to his discharge are unavailable for review.  However, the evidence does show that the applicant was arrested for shoplifting and was convicted for this crime.  He was confined by civil authorities for 4 days, fined $204.47, and was placed on probation for 12 months.  Additionally, the applicant's record shows he was reduced in pay grade on 13 January 1982 for reasons unknown.

3.  The applicant’s record contains a properly constituted DD Form 214 which was authenticated by the applicant.  Based on the applicant’s record of service, government regularity is presumed in the discharge process.  This document properly identifies the applicant’s characterization of service and reason for the discharge.

4.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to an honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___SP___  __JM____  ___KN__  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
AR20070013477
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080212
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19820128
DISCHARGE AUTHORITY
AR 635-200, chapter 5-31
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.