IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080005305 


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, in effect, that his under honorable conditions discharge be upgraded to an honorable discharge.  

2.  The applicant states, in effect, that he was informed by his unit that if he wanted to be discharged the only type available was a general discharge, an honorable discharge was not available and he could only take the general discharge or not be discharged.  The applicant believes that an honorable discharge is more appropriate and more accurately characterizes his service record and being awarded a general discharge was grossly unjust.  The discharge inaccurately characterizes his military service and provides an inaccurate historical record, both to himself and the U.S. Army of his service in the Army and to his country.  In the applicant’s affidavit to the Board he states, in effect, that he entered the military with his wife as a husband and wife team, in the military police specialty and they were assigned to the 9th Military Police Company, 9th Division, Fort Lewis, Washington.  Shortly after arriving at Fort Lewis their marriage became troubled and the problems ultimately resulted in the dissolution of their marriage.  Unfortunately his company commander did not believe that he was trying to resolve his problems in a satisfactory manner and recommended a general discharge.  His unit commander cited the reasons for the expeditious discharge were his tardiness, appearance, and attitude.  His commander believed that he failed to resolve his personal problems because of immaturity and a lack of desire.  He was incapable of coping with the slightest responsibility and he could not comply with the most basic needs of proper appearance and punctuality.  The applicant points out that he has never been subject to court martial and /or recipient of a nonjudicial punishment.  He was a military policeman and performed his assigned duties and never had to be relieved or reassigned.  Additionally, he would like to point out that he received a promotion to Private First Class (PFC) pay grade (E-3) on or about 8 August 1975, about a month before he was discharged.  He believes he would not have received a promotion if he were in fact incapable of coping with the slightest of responsibilities or demonstrated that he could not comply with the most basic military requirements.  He finally adds, that although, this is an old matter in terms of age, he believes that it merits consideration in the interest of justice.  He believes that when the facts and circumstances in this case are considered objectively the resolution of this matter is clear and his discharge shall be upgraded from a general under honorable conditions to an honorable discharge.  

3.  The applicant provides in support of his application a copy of the expeditious discharge letter, a copy of a letter in support of his discharge upgrade by personnel at Madigan Army Medical Center and a self-authored affidavit. 

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 that he enlisted in the Regular Army and entered active duty on 19 September 1974.  He successfully completed the required training and was awarded military occupational specialty 95B (Military Police).  On 8 August 1975, the applicant was promoted to PFC.

3.  On 8 September 1975, the applicant’s unit commander notified the applicant of his intent to initiate action to separate him under the provisions Army Regulation 635-200, paragraph 5-37, Expeditious Discharge Program (EDP) with a discharge under honorable conditions.  The reason for his proposed action was the applicant’s repeated counseling for the same offenses.  On several occasions it was necessary to counsel him for tardiness, appearance and attitude and still no positive response on the apart of the applicant.  Additionally the applicant was plagued by personal problems that he could not and would not resolve because of his immaturity and lack of desire.  He proved himself incapable of coping with the slightest of responsibilities.  Further, he demonstrated that he could not comply with the most basic military requirements of proper appearance and punctuality.  The commander listed dates and incidents for which the applicant was counseled by his superiors:  On 3 April 1975 (appearance – haircut), on
5 June 1975 (appearance – haircut) and attitude, on 16 July 1975 (tardiness and attitude) and on 19 August 1975 (tardiness and attitude).  The unit commander further informed the applicant of the effects of a less than honorable discharge and the rights available to him.  The applicant was further informed that the final decision as to whether he would be discharged and the type of discharge issued rested on the discharge authority.  If furnished a general discharge he may expect to encounter substantial prejudice in civilian life.  The applicant was informed that he had the right to decline the discharge.  If he declined subsequent conduct could warrant disciplinary or administrative separation procedures under other provisions of law or regulations.  

4.  The applicant acknowledged notification of his proposed separation action from the United States Army under the provisions of Army Regulation 635-200 chapter 5-37 (EDP) and voluntarily consented to this separation.  He acknowledged that he understood that his service would be characterized as under honorable conditions and that he may expect to encounter substantial prejudice in civilian life.  He also acknowledged that he was provided the opportunity to consult with legal counsel and was advised of the basis for the contemplated separation action, its effects and of the rights available to him.  The applicant voluntarily consented to the discharge and elected not to make a statement in his own behalf.  

5.  On 12 September 1975, the separation authority approved the applicant’s separation under the provisions of the EDP for failure to meet acceptable standards for continued military service and directed that the applicant receive an Under Honorable Conditions Discharge Certificate.  On 17 September 1975, the applicant was separated accordingly.  The DD Form 214 issued to him upon his separation confirms he was separated under the provisions of paragraph 5-37, Army Regulation 635-200, by reason of failure to meet acceptable standards for continued military service.  It also shows that at the time of discharge, he had completed a total of 11 months and 29 days of active military service.  

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

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, then in effect, provided the policy and outlined the procedures for separating individuals under the EDP who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel. An HD or GD could be issued under this program.  

8.  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 available evidence was carefully considered and was found to be insufficient to support the applicant’s contention that his discharge was grossly unjust.  

2.  The applicant's voluntary consent for separation under the provisions of Army Regulation 635-200, chapter 5-37, was administratively correct and in conformance with applicable regulations.  There is no indication that the consent was made under coercion, duress or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge was approved, he could encounter substantial prejudice in civilian life by reason of a discharge under honorable conditions.   

3.  The evidence of record confirms that the applicant’s discharge was based on his inability to meet acceptable military standards.  There is no evidence in his military record nor has the applicant provided any evidence to support his allegations. 

4.  Therefore, the applicant’s discharge processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met and that the applicant’s rights were protected throughout the separation process.  The record further confirms that the applicant voluntarily consented to the discharge and that his discharge accurately reflects his overall record of service.

5.  In view of the foregoing, there is no basis for granting the request. 

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.
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)                                         AR20080005305



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ABCMR Record of Proceedings (cont)                                         AR20080005305



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