RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 February 2008
	DOCKET NUMBER:  AR20070015256 


	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.


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	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 under honorable conditions discharge be changed to a medical discharge.

2.  The applicant states, in effect, that he did not receive the appropriate discharge due to his injuries not being processed correctly.  

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 4 November 1980 for a period of three years.  He completed basic training and advanced individual training and was awarded military occupational specialty 36K (tactical wire operations specialist).  He was advanced to private, E-2 in May 1981.  

3.  The evidence of record shows the applicant was confined by civil authorities on 7 August 1981 and returned to military control on 25 August 1981.

4.  A bar to reenlistment was imposed against the applicant on 16 September 1981.  The company commander indicated that the applicant was under charges by civilian authorities for burglary.  The company commander described the applicant’s overall duty performance, appearance, and attitude as below the standard for the U.S. Army.  The company commander stated the applicant had more than six formal counseling statements.  The counseling included disobeying a direct order, misuse of a Government vehicle, missing formation, and failure to be at his appointed place of duty.  

5.  On 28 September 1981, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being found sleeping on his post.  His punishment consisted of a reduction to private, E-1 (suspended until 25 December 1981); a forfeiture of $130.00 pay; extra duty for 14 days; and restriction for 14 days.  

6.  On 20 November 1981, the applicant was notified of his proposed discharge under the provisions of Army Regulation 635-200, paragraph 5-31.  The unit commander cited the basis for the proposed actions as the applicant's poor attitude, inability to adapt socially, inability to adapt emotionally, and failure to demonstrate promotion potential.  The applicant was advised of his rights.   

7.  On 23 November 1981, the applicant acknowledged notification of his proposed discharge and did not submit statements in his own behalf.  

8.  On 7 December 1981, the separation authority approved the recommendation for separation and directed issuance of a General Discharge Certificate.

9.  On 11 December 1981, the applicant was released from active duty under the provisions of Army Regulation 635-200, paragraph 5-31h for failure to maintain acceptable standards for retention.  He completed 1 year and 20 days total active military service with 18 days of lost time due to confinement by civil authorities.  

10.  The applicant’s medical records are not available.

11.  On 29 March 1983, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge to honorable.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Paragraph 5-31 of this regulation, in effect at the time, governed the Expeditious Discharge Program (EDP).  This program provided for the separation of service members who had a poor attitude, who lacked the necessary motivation, discipline, ability to adapt socially or emotionally or failed to demonstrate promotion potential.  Under this regulation, a general or an honorable discharge was considered appropriate.  

13.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.


DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant was counseled numerous times regarding his attitude towards the Army and his substandard performance.  However, there is no evidence available which indicates the applicant incurred a medical condition or injuries that rendered him medically unfit.  

3.  The applicant has failed to show through the evidence submitted or the evidence of record that the type of discharge issued to him was in error or unjust. Therefore, there is no basis for changing his general discharge to a medical discharge.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

x_____ x_____ x______  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.




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          CHAIRPERSON


INDEX

CASE ID
AR20070015256
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080228
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19811211
DISCHARGE AUTHORITY
AR635-200, paragraph 5-31h(2)
DISCHARGE REASON
Failure to maintain acceptable standards for retention
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.0000
2.

3.

4.

5.

6.