IN THE CASE OF:	  

		BOARD DATE:	        12 August 2008

		DOCKET NUMBER:  AR20080009762 


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 an upgrade of his discharge.    

2.  The applicant states that at the time of his separation, he was told his discharge would be upgraded in six months

3.  The applicant provided copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 7 March 1981 and 20 January 1982, and a copy of separation orders, dated 15 January 1982, 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 records show that the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 6 years on 15 September 1980.  He subsequently entered active duty for training (ADT) on 24 October 1980, completed basic combat training and advanced individual training, and was awarded military occupational specialty (MOS) 62G (Quarrying Specialist).  He was honorably released from ADT on 7 March 1981.

3.  The applicant’s records further show that he enlisted in the Regular Army for a period of 4 years on 18 June 1981 and was subsequently assigned to the 13th Engineer Battalion, Fort Knox, Kentucky.  The highest rank/grade he attained during his military service was private (PV2)/E-2.

4.  The applicant’s awards and decorations include the Army Service Ribbon and an undetermined class of Marksmanship Qualification Badge with Rifle Bar 
(M-16).  His records do not reveal any special recognition or distinction. 

5.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 30 September 1981, for willfully damaging a chair, the property of the United States, by carving the word “Red” into it, on or about 31 August 1981, and willfully damaging a chair in the dining facility, the property of the United States, by breaking its leg off, on or about 2 September 1981.  His punishment consisted of 14 days of extra duty and a forfeiture of $45.00 pay for one month; and   

	b.  on 4 December 1981, for being derelict in the performance of his duties, in that he drug his shotgun through the mud, thereby failing to maintain it, on or about 22 October 1981; for leaving his appointed place of duty (guard), on or about 22 October 1981, and for being derelict in the performance of his duties, in that he failed to remain awake during guard duty, on or about 26 October 1981.   His punishment consisted of reduction to private (PVT)/E-1, a forfeiture of $275.00 pay per month for two months, 45 days of restriction, and 45 days of extra duty.  

6.  On 24 December 1981, the applicant’s immediate commander advised the applicant that he intended to recommend his discharge from the Army under the provisions of paragraph 5-31, of Army Regulation 635-200 (Personnel Separations), by reason of failure to show any regard or respect for authority, poor attitude and actions that were not in keeping with the standards of order and discipline for the Army, and unsatisfactory duty performance and conduct.


7.  On 24 December 1981, the applicant acknowledged notification of his proposed discharge from the Army under the provisions of paragraph 5-31 of Army Regulation 635-200 and voluntarily consented to this discharge.  He further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life. 

8.  On 24 December 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation from the Army under the provisions of paragraph 5-31 of Army Regulation 635-200, the effect on future enlistment in the Army, the possible effects of a general discharge and of the procedures and rights that were available to him.  He waived consideration of his case by a board of officers, waived personal appearance by a board of officers, and, again, voluntarily consented to this separation and declined making a statement.  

9.  On 24 December 1981, the applicant’s acting immediate commander recommended approval of the applicant’s discharge with a General Discharge Certificate.

10.  On 13 January 1981, the separation authority approved the applicant's discharge and directed that he receive a General Discharge Certificate.  On 20 January 1981, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 11 months and 14 days of creditable active military service.  Item 28 (Narrative Reason for Separations) of his DD Form 214 shows the entry, “Failure to Maintain Acceptable Standards for Retention.”

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

12.  Army Regulation 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel.  The pertinent paragraph in Chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of 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.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

13.  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 Army does not have a policy for an automatic upgrade of a Soldier’s discharge six months after the date of discharge.  

2.  The evidence of record shows that the applicant voluntarily consented to his discharge under the Expeditious Discharge Program.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation therefore were appropriate considering all the facts of the case.

3.  The applicant's record of service shows that he displayed an inability to adjust to the regimentation of military life as reflected by his continuous disciplinary history of NJP under the provisions of Article 15 of the UCMJ.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



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               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)                                         AR20080009762



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ABCMR Record of Proceedings (cont)                                         AR20080009762



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