RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080002541 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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, an upgrade of his discharge and correction of the narrative reason for separation to show he was discharged for medical and mental reasons. 

2.  The applicant does not make a statement.

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 the applicant enlisted in the Regular Army for a period of 3 years on 28 September 1978.  He completed basic combat training at Fort Jackson, South Carolina.

3.  On 25 January 1979, the applicant attended his first advanced individual training (AIT) at Fort Knox, Kentucky.  However, on 4 March 1979, he departed his AIT unit in an absent without leave (AWOL) status.  He returned to his unit on 21 March 1979.  

4.  On 30 March 1979, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being AWOL during the period from on or about 4 March 1979 through on or about 21 March 1979.  His punishment consisted of forfeiture of $200.00 pay per month for 2 months and 30 days of restriction.

5.  On 27 April 1979, the applicant attended his second AIT at Fort Lee, Virginia. However, on 4 June 1979, he departed his second AIT unit in an AWOL status.  He returned to his unit on 11 June 1979. 

6.  On 18 June 1979, the applicant departed in an AWOL status and was subsequently dropped from the Army rolls (DFR) on 19 June 1979.  He surrendered to military authorities and was returned to his AIT unit at Fort Lee, Virginia, on 3 August 1979.  

7.  On 20 August 1979, the applicant accepted nonjudicial punishment under the provisions of Article 15, of the UCMJ for being AWOL during the periods from on or about 4 June 1979 through on or about 11 June 1979 and from on or about 18 June 1979 through on or about 3 August 1979.  His punishment consisted of forfeiture of $100.00 pay per month for two months (suspended for six months), 7 days of restriction, and 7 days of extra duty.

8.  On 19 September 1979, the applicant departed his AIT unit in an AWOL status and was reported DFR on 18 October 1979.  He was apprehended by civilian authorities in Scotland Neck, North Carolina, on 25 October 1979, and was held in Halifax County jail, North Carolina, on charges of assault and AWOL. He was released to military control at Fort Bragg, North Carolina, on 30 October 1979.

9.  On 14 November 1979, the applicant departed AWOL again and on 19 November 1979, he was reported DFR.  He returned to his unit on 3 January 1980.

10.  On 14 January 1980, the applicant’s immediate commander advised the applicant that he intended to recommend his discharge from the Army under the provisions of paragraph 5-31, of Army Regulation 635-200 (Personnel Separations), by reason of poor attitude, lack of motivation, and inability to adjust to military life.  The immediate commander recommended a General Discharge Certificate.

11.  On 15 January 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation from the Army under the provisions of paragraph 5-31 of Army Regulation 635-200, 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 voluntarily consented to this separation and declined making a statement.  


12.  On 23 January 1980, the separation authority approved the applicant's discharge and directed that he receive a General Discharge Certificate.  However, on 21 January 1980, the applicant had departed in an AWOL status.  He returned to his unit on 28 January 1980. 

13.  On 28 January 1980, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 10 months and 10 days of creditable active military service and had 171 days of lost time due to AWOL.  Item 28 (Narrative Reason for Separations) of his DD Form 214 shows the entry, “Failure to Maintain Acceptable Standards.”

14.  The applicant's available medical records show that he made frequent visits to the medical facility on miscellaneous dates for routine sick call, to include knee pain, back pain, stomach pain, dry throat, and enlarged tonsils. 

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

16.  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 Expeditious Discharge Program.  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.



17.  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's separation under the Expeditious Discharge Program was voluntary and the evidence shows he voluntarily consented to the discharge.  His 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 reason for separation therefore were appropriate considering all the facts of the case.

2.  The applicant's frequent visits to the medical clinic for routine or urgent care are not in question.  However, there is no evidence in the available record and the applicant did not provide any substantiating evidence that shows his pattern of indiscipline and multiple instances of AWOL were the result of medical or mental problems. 

3.  The applicant's record of service shows that he displayed an inability to adjust to the regimentation of military life as reflected by his continuous disciplinary history of NJP under the provisions of Article 15 of the UCMJ and multiple instances of AWOL.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, the applicant 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.



							RML
      ______________________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080002541



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508