IN THE CASE OF:	  

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080008296 


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, an upgrade of his general discharge under honorable conditions to an honorable discharge.  

2.  The applicant states, in effect, that he believes that his record is in error and should state honorable as opposed to under honorable conditions.

3.  The applicant submitted no additional documentary evidence 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 that he enlisted in the U.S. Army Reserve (USAR) and ordered to active duty on 4 February 1977.  He completed basic training and advanced individual training and was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).  The highest grade he attained was private, pay grade E-2.

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

4.  On 3 October 1977, the applicant accepted nonjudicial punishment (NJP) for disobeying a lawful order issued by a senior noncommissioned officer (NCO).  His imposed punishment was a forfeiture of $97.00 pay and reduction in grade to Private (PV1)/E-1 (suspended for 60 days).  On an unknown date the suspension of the punishment of reduction to grade PV1 was vacated and the unexecuted portion of the punishment was duly executed.

5.  On 19 January 1978, the applicant accepted nonjudicial punishment (NJP) for failing to go at the time prescribed to his appointed place of duty on 
24 December 1977 and for being absent without leave (AWOL) from 5 January 1978 to 11 January 1978.  His imposed punishment was a forfeiture of $66.00 and restriction for 7 days.

6.  On 20 March 1978, the applicant accepted NJP for AWOL from 6 to
7 February 1978.  His imposed punishment was a forfeiture of $92.26, 7 days restriction, and to surrender all his civilian clothing for a period of 7 days.

7.  On 7 April 1978, the company commander notified the applicant that he was initiating action to discharge him under the provisions of paragraph 5-31, Expeditious Discharge Program (EDP) of Army Regulation 635-200 (Personnel Separations).  The commander stated that the applicant consistently disregarded all instructions given to him by the NCOs of the unit, and that he was consistently late for work.  In addition, his attitude and personal behavior brought discredit to his unit as well as the Army.  He further stated that the applicant lacked the desire to perform as a Soldier and is not motivated in any way toward the military.  The commander stated he was recommending that the applicant’s service be furnished a General Discharge Certificate.

8.  On the same day, the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights.  He declined to submit statements in his own behalf.  
9.  On 8 April 1978, the applicant’s commander forwarded his recommendation to the next higher authority.

10.  On 2 May 1978, the applicant received a psychiatric evaluation and was diagnosed with an occupational maladjustment disorder.  The examining official cleared the applicant for any administrative action deemed appropriate by the command.  He further recommended that the applicant be separated from the military under the expeditious discharge program. 

11.  On 5 May 1978, the applicant accepted nonjudicial punishment (NJP) for failure at the prescribed time to go to his appointed place of duty on 
27 April 1997 and for being disrespect toward a noncommissioned officer.  His imposed punishment was a forfeiture of $92.26 pay (7 days pay), 7 days restriction to Sullivan Barracks, 7 days extra duty, and to surrender all of his civilian clothing for a period of 7 days.

12.  On 6 June 1978, the appropriate authority approved the applicant’s expeditious discharge and recommended that he be issued a General Discharge Certificate.

13.  On 28 June 1978, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, under the EDP for failure to maintain acceptable standards for retention.  The separation document (DD Form 214) he was issued at the time confirms that he held the rank of private (PV2)/E-2, and had completed a total of 1 year, 8 months, and 27 days of total active military service with 7 days lost due to AWOL.    

14.  Item 27 (Remarks) on the applicant's DD Form 214 shows the entry, "9C* FAILURE TO MAINTAIN ACCEPTABLE STANDARDS FOR RETENTION EDP. 

15.  On 16 October 1979, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.

16.  Army Regulation 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel.  Paragraph 5-31 of the regulation provides, in pertinent part, that members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of a 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.  Individuals discharged under the provisions of this paragraph may be awarded an honorable or general 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be without merit.

2.  In the applicant's relatively short period of service he accepted five Article 15s. His commander determined that the applicant lacked motivation to successfully complete his military obligation and recommended his separation due to his poor attitude and lack of self-discipline.  

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  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.  All requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process.  

4.  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.

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

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)                                         AR20080002816



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ABCMR Record of Proceedings (cont)                                         AR20080008296



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