IN THE CASE OF:	  

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080008669 


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 to an honorable discharge.  

2.  The applicant states, in effect, that he has a service-connected disability (PTSD [posttraumatic stress disorder]) and suffering from a bipolar disorder.

3.  The applicant provides a VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim) 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 Regular Army and entered active duty on 11 December 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantrymen).  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 31 May 1979, the applicant accepted nonjudicial punishment (NJP) for wrongfully urinating in a shower drain on 20 April 1979; failure to go at the time prescribed to his appointed place of duty on 1 May 1979; failure to go at the time prescribed to his appointed place of duty on 4 May 1979; wrongfully urinating in a cup on 6 May 1979; willfully disobeying a lawful order from a superior noncommissioned officer on 7 May 1979; and for wrongfully urinating out of a second story window on 7 May 1979.  His imposed punishment was a forfeiture of $90.00 pay, 7 days restriction, and 7 days extra duty.

5.  On 5 November 1979, the applicant accepted nonjudicial punishment (NJP) for causing a breach of peace by engaging in an affray with another Soldier and by willfully disobeying a lawful order from a superior noncommissioned officer on 9 October 1979.  His imposed punishment was a forfeiture of $100.00 pay for
2 months, 45 days restriction (15 days suspended through 5 February 1980), and 45 days extra duty (15 days suspended through 5 February 1980) 

6.  On 18 October 1979, the company commander notified the applicant that he was initiating action to discharge the applicant under the provisions of paragraph
5-31, Expeditious Discharge Program (EDP) of Army Regulation 635-200 (Personnel Separations).  The commander stated that the applicant lacked motivation and promotion potential.  The commander stated he was recommending that the applicant be furnished a General Discharge Certificate.

7.  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 by waiving his right to have his case considered by an administrative separation board, and declined to submit statements in his own behalf.  

8.  On 18 October 1979, the applicant’s commander forwarded his recommendation to the next higher authority.

9.  On 20 November 1979, the appropriate authority approved the applicant’s expeditious discharge and directed the applicant issued a General Discharge Certificate.

10.  On 31 December 1979, 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/E-2 (PV2), and had completed a total of 1 year and 20 days of active military duty.    

11.  Item 28 (Narrative Reason for Separation) on the applicant's DD Form 214 shows the entry, "FAILURE TO MAINTAIN ACCEPTABLE STANDARDS FOR RETENTION EDP. 

12.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for a change to his discharge within the ADRB's 15-year statute of limitations.

13.  There is no indication that the applicant informed his chain of command or sought medical treatment for his claimed PTSD or bipolar disorder.

14.  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.

15.  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 period of service he accepted 2 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.  There is no evidence nor did the applicant submit any evidence that he received medical treatment during his enlistment.  Therefore, there is no basis to correct his records to show that he had PTSD or a bipolar disorder.

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

5.  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.

6.  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)                                         AR20080008669



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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