IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080005492 


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, upgrade of his general discharge to honorable. 

2.  The applicant provides no statement in support of his request.

3.  The applicant provides no additional documentation 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 military records show he enlisted in the Regular Army, in pay grade E-1, on 5 December 1979, for 3 years.  He completed basic combat and advanced training and was awarded the military occupational specialty 11B, Infantryman.  
3.  On 28 January 1980, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his appointed place of duty on 17 January 1980.  The punishment imposed included a forfeiture of $50.00 pay per month for 1 month.

4.  The applicant was advanced to pay grade E-2 on 1 May 1980.

5.  On 19 June 1980, the applicant accepted punishment under Article 15, UCMJ, for failing to go to his appointed place of duty on 14 June 1980.  The punishment imposed included a reduction to pay grade E-1, a forfeiture of $104.00 pay, and 7 days confinement (suspended until 19 September 1980).

6.  On 31 October 1980, the applicant’s unit commander notified him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200, paragraph 5-31, Expeditious Discharge Program (EPD).  He advised the applicant that he proposed to recommend that he be furnished a General Discharge Certificate.  He cited, as the reasons for the proposed actions:  the applicant's poor attitude, lack of self-discipline, and his inability to adapt socially or emotionally to military life.  

7.  On 31 October 1980, the applicant's unit commander initiated a Bar to Reenlistment.  The unit commander stated that the applicant had habitually demonstrated a poor attitude, inability to adjust socially or emotionally to military life.  The applicant had failed to demonstrate promotion potential and had constantly displayed a lack of self discipline.  The unit commander further stated that the applicant had not achieved the minimum standards established by the unit and US Army and was currently pending elimination under the provisions of Chapter 5, Army Regulation 635-200.

8.  On 3 November 1980, the applicant waived his rights, consented to the proposed discharge action, and elected not to submit a statement in his own behalf.  He acknowledged that if he was furnished a general discharge, under honorable conditions, that he could expect to encounter substantial prejudice in civilian life.

9.  On the same day, the applicant acknowledged that a Bar to Reenlistment had been initiated on him and he elected not to submit a statement in his own behalf. 

10.  On 4 November 1980, the applicant's unit commander recommended his separation from the service before the expiration of his term of service with a general discharge.  The unit commander requested the rehabilitative requirements be waived.

11.  On 5 November 1980, the separation authority approved the recommendation for the applicant's separation and directed that he be furnished a General Discharge Certificate.

12.  The applicant's Bar to Reenlistment was approved on 13 November 1980.

13.  The applicant was discharged, in pay grade E-1, on 25 November 1980, under the provisions of Army Regulation 635-200, paragraph 5-31, for Expeditious – Poor Attitude, Lack of Self-Discipline, with a general discharge.  He was credited with 11 months and 21 days of total active service.  

14.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200 (Enlisted Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31 provided, in part, for the discharge of enlisted personnel whose performance of duty and potential for continued effective service fell below the standards required in the Army.  Individuals discharged under this regulation could be issued a general or honorable discharge. 

16.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

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 EDP 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 that he had the opportunity to consult with legal counsel prior to accepting discharge.  The record further shows that the applicant voluntarily consented to the discharge.

2.  In the applicant's relatively short period of service, he accepted two Article 15s, was reduced from pay grade E-2 to pay grade E-1, and was barred from reenlistment based on his poor attitude, lack of self-discipline, and his inability to adjust socially or emotionally to military life.  His unit commander determined that the applicant had not achieved the minimum standards established by the unit and US Army and recommended his separation due to his failure to demonstrate promotion potential and constant lack of self discipline.

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

4.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

5.  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.

6.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his general 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)                                         AR20080005492



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ABCMR Record of Proceedings (cont)                                         AR20080005492


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