IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080009352


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 under honorable conditions discharge be upgraded to an honorable discharge.  

2.  The applicant states, in effect, that he was threaten that if did not sign the Expeditious Discharge; he was going to receive a Bad Conduct Discharge.  He adds that he was young and going through hard times.  His command wanted him out instead of working with him.  After all these years the applicant would like his family to know that he served his country honorably.

3.  The applicant provides no additional documents 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 service records are not available to the Board for review.  However, there were sufficient documents remaining in a reconstructed record which consist of the Army Review Boards decision and other documents for the Board to conduct a fair and impartial review of this case.

3.  The applicant’s available record shows that he enlisted in the Regular Army and entered active duty on 12 June 1979, for a period of 3 years.  He successfully completed the required training and was awarded military occupational specialty 76C (Equipment Records & Parts Specialist).  The highest pay grade he attained was pay grade E-2.

4.  On 3 October 1980, while assigned to a unit in Germany, the applicant accepted nonjudicial punishment for willfully disobeying a lawful order from his superior non-commissioned officer.  His imposed punishment was a reduction to pay grade E-1 (suspended for 120 days), a forfeiture of $104.00 pay, 14 days restriction and 14 days extra duty.  On an unknown date, the suspension of the punishment of reduction to the grade of Private pay grade E-1 was duly executed.

5.  The applicant’s Personnel Qualification Record shows that the applicant went absent without leave (AWOL) from 18 December 1979 to 7 January 1980.  However, the particular surrounding the incident is missing from his file.  

6.  On 17 April 1981, his unit commander notified the applicant of his intent to initiate action to separate him under the provisions Army Regulation 635-200, paragraph 5-31, for failure to maintain acceptable standards for retentions, with a discharge under honorable conditions.  The applicant was advised of the rights available to him.  

7.  On 23 April 1981, the applicant acknowledged notification the proposed separation action from the United States Army under the provisions of Army Regulation 635-200 chapter 5-31.  He acknowledged notification and voluntarily consented to the discharge and elected not to make a statement in his own behalf.  

8.  On 24 April 1981, a physical examination cleared the applicant for separation.

9.  On 28 April 1981, the separation authority approved the applicant’s discharge under the provisions of 635-200, chapter 5-31, and directed that the applicant receive an Under Honorable Conditions Discharge Certificate.  On 
26 May 1981, the applicant was separated accordingly.  The DD Form 214 issued to him upon his separation confirms he was discharged under the provisions of paragraph 5-31h, Army Regulation 635-200, by reason of failure to maintain acceptable standards for retention.  It also shows that at the time of discharge, he had completed a total of 2 years and 23 days of active military service and 21 days of time lost due to being AWOL.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, then in effect, provided the policy and outlined the procedures for separating individuals under the EDP who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel. An HD or GD could be issued under this program.  

11.  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.

12.  On 28 April 1988, the Army Discharge Review Board (ADRB) determined that the applicant’s discharge was proper and equitable and voted to deny the applicant’s request for an upgrade of his discharge.  

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be insufficient in merit in warranting an upgrade of his discharge at this time.  The applicant’s file was thoroughly reviewed and the evidence of record confirms that the applicant’s discharge was based on his inability to maintain acceptable standards for retention.  There is no evidence in his military record nor has the applicant provided any evidence to support his allegations. 

2.  The applicant's voluntary consent for separation under the provisions of Army Regulation 635-200, chapter 5-31, was administratively correct and in conformance with applicable regulations.  There is no indication that the consent was made under coercion, duress or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge was approved, he could encounter substantial prejudice in civilian life by reason of a discharge under honorable conditions.  

3.  Records show that the applicant was only 20 years of age at the time of his offenses.  However, 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.  There is also no evidence that the applicant was going through hard times at the time of his discharge. 

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.

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)                                         AR20080009352



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ABCMR Record of Proceedings (cont)                                         AR20080009352



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