IN THE CASE OF:		  

		BOARD DATE:	  06 May 2010

		DOCKET NUMBER:  AR20090018658 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his general under honorable conditions discharge.

2.  The applicant states he was given a general under honorable conditions discharge and he was told he could request an upgrade after 6 months of his discharge.

3.  The applicant provides a copy of a letter from the National Personnel Records Center, dated 16 October 2009.

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 he enlisted in the Regular Army for a period of 3 years on 20 May 1980 and held military occupational specialty (MOS) 57E (Laundry and Bath Specialist).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant’s records show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), the First Class Marksmanship Qualification Badge with Grenade Bar, and the Army Service Ribbon.

4.  On 14 July 1980, while still in training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being found asleep while on fireguard.  His punishment consisted of a forfeiture of $100.00 pay for one month (suspended), and 7 days of restriction and extra duty.

5.  Subsequent to completion of his MOS training, he was reassigned to the 1st Corps Support Command, Fort Bragg, NC, where he received a substantial number of negative counseling from several members of his chain of command for various infractions including multiple instances of failure to repair, being absent from his appointed place of duty, missing formations, poor performance and personal conduct, and lack of motivation.

6.  His records also show that while at Fort Bragg, NC, he accepted NJP under the provisions of Article 15 of the UCMJ as follows:

	a.  On 12 March 1982, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of $130.00 pay for one month and 7 days at the correctional custody facility (CCF).

	b.  On 10 June 1981, for being absent without leave (AWOL) from on or about 4 May 1981 to on or about 30 May 1981.  His punishment consisted of a forfeiture of $250.00 pay for 2 months, a reduction to private/E-1, and 30 days at the CCF.

   c.  On 11 December 1981 for larceny (stealing cigarettes from the Post Exchange).  His punishment consisted of a forfeiture of $50.00 pay for one month.

7.  On 3 May 1982, his immediate commander notified him that he intended to recommend separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph

5-31 (Expeditious Discharge Program (EDP)), by reason of lack of ability to adapt socially and emotionally to military life.

8.  His record contains two acknowledgement letters as follows:

	a.  On 27 May 1982, he acknowledged notification of the proposed separation action and consulted with legal counsel.  He was advised of the basis for the contemplated separation action under the provisions of Army Regulation
635-200, paragraph 5-31, the effect on future enlistment in the Army, the possible effects of a general under honorable condition discharge and of the procedures and rights that were available to him.  He acknowledged that he understood if he were issued a general under honorable conditions discharge, he could expect to encounter substantial prejudice in civilian life.  He also declined consideration of his case by a separation board, appearance before a board, and declined making a statement in his own behalf.  He also indicated that he understood that his consent is not required if he was being eliminated under the provisions of Army Regulation 635-200, chapter 5.

	b.  An undated endorsement wherein he stated, "I further understand that if I decline to accept this separation voluntarily, I may at a future time, if my conduct so warrants, be subject to separation under other provisions of law or regulation.

9.  On an unknown date in 1982, his immediate commander initiated separation action against him under the EDP and recommended issuance of a General Discharge Certificate.

10.  On 13 July 1982, the separation authority approved the applicant's discharge and directed that he receive a General Discharge Certificate.  On 22 July 1982, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions Army Regulation 635-200, paragraph 5-31, by reason of failure to maintain acceptable standards, with an under honorable conditions character of service.  This form also shows he completed 2 years, 1 month, and 7 days of creditable active military service with 25 days of time lost.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel.  The pertinent paragraph in Chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

13.  On 1 April 1982, an Interim Change to Army Regulation 635-200 eliminated the requirement to obtain the Soldier's consent for separation under the provisions of the EDP and eliminated the requirement to offer an administrative separation board for Soldiers with less than 6 years for separation under the provisions of the unsuitability provision. 

14.  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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded.

2.  The evidence of record shows he continually displayed a lack of self-discipline and inability to conform to military rules as evidenced by an extensive history of negative counseling, four instances of NJP, and AWOL.  Accordingly, his chain of command initiated separation action against him under the EDP.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  His overall records of service shows he displayed an inability to adjust to the regimen of military life or respond to counseling.  Based on his overall record, his service does not meet the standards of acceptable conduct and performance for Army personnel.  Therefore, he is not entitled to an honorable 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.



      ___________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090018658



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ABCMR Record of Proceedings (cont)                                         AR20090018658



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