IN THE CASE OF:	    

		BOARD DATE:	         23 September 2008

		DOCKET NUMBER:  AR20080007996 


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 general discharge be upgraded to honorable.

2.  The applicant states, in effect, that he was young when he entered the service immediately after completing high school.  The applicant continues that it was also his first time away from home and he had done his best by staying in the service for two years.  The applicant adds that it has been over 20 years since his separation and he has not been in trouble or a convicted felony at all.  The applicant continues that all he wants is to have his discharge upgraded in order to get a better job to support his family. 

3.  The applicant provides no additional documents in support of this 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 14 August 1980, at the age of 18.  He completed basic combat and advanced individual training and was awarded military occupational specialty 16P (Air Defense Artillery Short Range Missile Crewman).  He was advanced to the rank of private/pay grade E-2 on 10 June 1982.  

3.  The applicant's record shows he was awarded the Army Service Ribbon, the Overseas Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

4.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  

5.  The available evidence reveals a disciplinary history which includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 8 June 1982 for, without proper authority, going from his appointed place of duty on 2 June 1982; and without proper authority, failing to go to at the time prescribed to his appointed place of duty on 3 June 1982.  His punishment consisted of reduction to the grade of private/pay grade E-2 and 14 days of extra duty.

6.  A bar to reenlistment was initiated against the applicant on 2 July 1982 for his substandard performance and failing to comply with military standards after considerable counseling.  On 2 July 1982, he acknowledged that he had been counseled and advised of the basis for the bar to reenlistment and he elected not to submit statements in his own behalf.  The Bar to Reenlistment was subsequently approved by the approval authority on 28 July 1982.  

7.  The applicant's record contains a DA Form 4856 (General Counseling Form), dated 15 July 1982, which shows that on 6 July 1982, the applicant was counseled on his un-Soldierly bearing, bad attitude, and poor duty performance.  This form shows that during the counseling session the applicant was told what was expected of him and the ways to improve his duty performance if he expected to stay in the Army.  The counseling session continued by pointing out that the applicant had consistently been counseled about back talking to non-commissioned officers, breaking windows, uniform violations, missing formation 
and not getting up in the morning.  This form further shows that he was counseled and advised that corrective action would be taken which did not rule out UCMJ and possible chapter 13 (Misconduct) action.  

8.  On 19 July 1982, the applicant accepted NJP under Article 15, UCMJ for being disrespectful in language toward a superior noncommissioned officer on
15 July 1982.  His punishment consisted of a reduction to private/E-1, forfeiture of $128.00 pay per month for 1 month, 14 days of extra duty, and 14 days of restriction.

9.  On 9 August 1982, the applicant was notified of his proposed discharge under the provisions of Army Regulation 635-200 (Personnel Separation), paragraph 
5-31 (Expeditious Discharge Program).  The unit commander cited the basis for the proposed actions was the applicant's substandard Soldiering and his failure to comply with military standards and advised the applicant of his rights.   

10.  On 9 August 1982, the applicant acknowledged notification of his proposed discharge and did not submit statements in his own behalf.  

11.  On 11 August 1982, the separation authority directed the applicant be separated under the provisions of paragraph 5-31, Expeditious Discharge Program of Army Regulation 635-200 and receive a General Discharge Certificate.  

12.  On 16 August 1982, the applicant was discharge accordingly.  The DD Form 214 issued to the applicant at the time, confirms he was separated from active duty under the provisions of Army Regulation 635-200, paragraph 5-31 under the Expeditious Discharge Program (EDP) for failure to meet acceptable standards for retention.  The applicant's record shows he completed 2 years and 3 days of total active military service with no lost time.  

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

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Paragraph 5-31 of this regulation, in effect at the time, governed the Expeditious Discharge Program (EDP).  This program provided for the separation of service members who had a poor attitude; who lacked the necessary motivation, discipline, ability to adapt socially or emotionally or failed to demonstrate promotion potential.  Under this regulation, a general or an honorable discharge was considered appropriate.  

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

16.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his general under honorable conditions discharge should be upgraded to honorable because he was young and needs a better job was carefully considered and determined to be without merit.

2.  Records show that the applicant was 22 years of age at the time of his offenses.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.

4.  The ABCMR will grant changes if it is determined that the characterization of service or the reason for discharge were improper or inequitable.

5.  The applicant's records clearly show that he accepted punishment under two Article 15's of the UCMJ for offenses including going from his appointed place of duty without authority; failing to go at the time prescribed to his appointed place of duty; and being disrespectful in language to his superior NCO. 

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.
7.  Accordingly, the type of discharge directed and the reason for discharge are appropriate considering all the facts of this case.

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)                                         AR20080007996



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007996



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1