IN THE CASE OF:	 

		BOARD DATE:	        12 November 2008

		DOCKET NUMBER:  AR20080008294 


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, under honorable conditions discharge be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that he needs his discharge upgraded because he is applying for a job with the Memphis Police Department.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) 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 record shows he enlisted in the Delayed Entry Program (DEP) on 17 April 1978.  He was discharged from the DEP on 26 June 1978 and enlisted in the Regular Army and entered active duty on 27 June 1978 for a period of four years.  He was trained in, awarded, and served in military occupational specialty (MOS) 36C (Wire System Installer).  The highest rank he attained while serving on active duty was private (PV2)/pay grade E-2.  

3.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for the following offenses:  for disobeying a lawful order on 19 August 1978, possession of marijuana on 1 March 1979, for striking another Solider on 9 April 1979, and for being absent without leave (AWOL) from 16 April 1979 through 18 April 1979.

4.  On 3 July 1979, the applicant's unit commander notified the applicant of his intent to initiate action to separate him under the provisions of chapter 5 (Expeditious Discharge Program) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) and that he was recommending the applicant receive a General Discharge Certificate.  The unit commander cited the reasons for his proposed action were the applicant's poor attitude, lack of self-discipline, failure to demonstrate promotion potential, inability to accept instructions and directions, substandard performance, and lack of cooperation with his peers and superiors. 

5.  The applicant acknowledged receipt of this notification and indicated that he was voluntarily consenting to the discharge.  He further acknowledged that he was advised of the basis of the contemplated separation action with a General Discharge Certificate, its effects and of the rights available to him.  The applicant also elected not to make a statement in his own behalf.

6.  On 19 July 1979, the separation authority approved the applicant’s separation under the provisions of the Expeditious Discharge Program and directed the applicant receive a General Discharge Certificate.  On 20 July 1979, the applicant was discharged accordingly.  

7.  The DD Form 214 issued to the applicant upon his separation confirms he was separated under the provisions of chapter 5, paragraph 5-31 of Army Regulation 635-200, by reason of the Expeditious Discharge Program.  This form further shows the applicant completed a total of 1 year and 22 days of creditable active service. 



8.  On 6 June 1985, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

9.  Army Regulation 635-200 set forth basic authority for the separation of enlisted personnel.  Chapter 5, paragraph 5-31, then in effect, provide the policy and outlined the procedures for separating individuals under the Expeditious Discharge Program.  The Expeditious Discharge Program provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.  An honorable discharge or general discharge could be issued under the program. 

10.  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 contends that his general discharge should be upgraded to honorable.

2.  The evidence of record confirms that the unit commander notified the applicant of the contemplated separation action under the provision of the Expeditious Discharge Program.  Records further show that the applicant was advised of the basis for the contemplated separation action and its possible effects.

3.  The applicant's 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 undistinguished service. 

4.  Evidence of records shows the applicant received two nonjudicial punishments for disobeying a lawful order, for being AWOL, for striking another Soldier; and possession of marijuana.  Based on this 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.



5.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.

6.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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)                                         AR20080008294



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ABCMR Record of Proceedings (cont)                                         AR20080008294



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