RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 March 2008
	DOCKET NUMBER:  AR20070016753 


	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. James E. Anderholm

Chairperson

Mr. William D. Powers

Member

Mr. Jerome L. Pionk

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 it has been 25 years since his discharge.  

3.  The applicant did not provide any additional documentary evidence 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 5 July 1972 for a period of 4 years.  He completed basic combat and advanced individual training (AIT) and was awarded military occupational specialty (MOS) 13A (Filed Artillery Basic).  Upon completion of AIT, he was assigned to Headquarters and Headquarters Battery, 6th Battalion, 14th Artillery, 1st Armored Division, Germany.  The highest rank he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records show that she was awarded the Army Service Ribbon and the National Defense Service Medal during his active duty tenure.  His records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:


	a.  on 18 April 1973, for willingly disobeying a lawful order, on or about 12 April 1973.  His punishment consisted of forfeiture of $25.00 pay for one month; and 

	b.  on 10 May 1973, for absenting himself from his appointed place of duty, on or about 19 April 1973; willfully disobeying a lawful order from a superior commissioned officer, on or about 19 April 1973; and willfully disobeying a lawful order from a superior noncommissioned officer, on or about 19 April 1973.  His punishment consisted of forfeiture of $50.00 pay for one month.

5.  On 12 December 1973, the applicant's immediate commander initiated a memorandum advising the applicant of his intent to recommend his separation from the Army under the provisions of the Expeditious Discharge Program.  The immediate commander remarked that the applicant was a highly immature and explosive individual, substandard in the performance of his duties, had difficulty in cooperating with other Soldiers, and could not work as part of the battery team. The immediate commander further recommended a general discharge. 

6.  On 12 December 1973, the applicant acknowledged receipt of the notification and voluntarily consented to his separation from the Army.  He waived submitting a statement on his own behalf and understood that if he were furnished a general discharge under honorable conditions, he could encounter substantial prejudice in civilian life.  He further acknowledged that he was provided an opportunity to consult with a Judge Advocate officer.  

7.  On 18 December 1973, the applicant’s intermediate commander recommended approval of the applicant’s general discharge under the Expeditious Discharge Program.   

8.  On 22 January 1974, the separation authority approved the applicant's discharge from the Army under the Expeditious Discharge Program and directed that he receive a General Discharge Certificate.  Accordingly, the applicant was discharged on 6 February 1974.  The DD Form 214 he was issued confirms he was discharged with an Under Honorable Conditions (General) Discharge.  This form also shows that she completed 1 year, 7 months, and 2 days of creditable active military service.

9.  There is no indication 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 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37 provides, in part, for the discharge of enlisted personnel whose performance of duty and potential for continued effective service fall below the standards required in the Army.  Individuals discharged under this regulation could be issued a general or honorable discharge. 

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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The applicant voluntarily accepted discharge under the provisions of the Expeditious Discharge Program in lieu of disciplinary or administrative separation under other provisions of law or regulations.  He acknowledged that he understood the ramifications of a general discharge and consulted with legal counsel prior to accepting discharge.

2.  The applicant accepted an Article 15, and his chain of command indicated that he had no desire to remain on active duty which was manifested in his poor duty performance, lack of motivation, and negative attitude.  It appears the applicant's chain of command attempted to assist and rehabilitate him through the imposition of nonjudicial punishment; however, the applicant did not respond appropriately to these attempts and indicated his desire to get out of the Army.  The unit commander appropriately determined that the applicant lacked motivation to successfully complete his military obligation.  

3.  Given the above, the applicant's military service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge. 

4.  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 did not submit any evidence that would satisfy this requirement.  Therefore, there is no basis upon which to grant the applicant's request.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jea___  __wdp___  __jlp___  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.




							James E. Anderholm
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.