IN THE CASE OF:	  

		BOARD DATE:	        12 August 2008

		DOCKET NUMBER:  AR20080009788 


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 “he was denied surgery for his hernia, back problems, muscles, and mental problems.”  He further adds that he should have received surgery and been allowed to be medically discharged.  He also states that he volunteered to serve during war time, yet he was not treated with compassion or respect and that he is still suffering from the way he was mistreated and discharged from the Army.   

3.  The applicant did not provide any additional documentary evidence 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 he enlisted in the Regular Army for a period of 2 years on 27 December 1972.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 81A (Draftsman).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant’s awards and decorations include the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar     (M-16).  His records do not reveal any acts of valor and/or special recognition or distinction. 

4.  On 6 March 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period on or about 11 February 1974 through on or about 19 February 1974.  His punishment consisted of a forfeiture of $50.00 pay for one month, 14 days of extra duty, and 14 days of restriction.

5.  On 6 June 1974, the applicant’s immediate commander advised the applicant that he intended to recommend his discharge from the Army under the Expeditious Discharge Program and the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations), by reason of apathy, inability to adapt to military authority and the European environment, and the fact that despite rehabilitative duty transfer and multiple counseling sessions, his immaturity continued to make him a non-productive member of the unit.  The immediate commander further remarked that continued active duty service and training would not have enabled the applicant to become a productive member of the unit.

6.  On 6 June 1974, the applicant acknowledged notification of his proposed discharge from the Army under the provisions of chapter 13 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. 

7.  On 11 June 1974 (erroneously shown as 27 December 1974), the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant.  The immediate commander remarked that the applicant did not prove to be trainable and was accordingly assigned to the motor pool, a line platoon, and to the unit police; however, he did not perform any assignment in an acceptable manner.  The applicant acknowledged receipt of the bar to reenlistment and indicated that he did not desire to submit a statement on his own behalf.  His battalion commander also recommended approval of his bar.  
8.  On 13 June 1974, the applicant’s intermediate commander recommended approval of the applicant’s discharge.  

9.  On 14 June 1974, the applicant’s senior commander subsequently approved the applicant’s Bar to Reenlistment Certificate.

10.  On 19 June 1974, the applicant’s senior commander recommended approval of the applicant’s discharge.

11.  On 15 July 1974, the separation authority approved the applicant's discharge under the provisions of the Expeditious Discharge Program, for unsuitability by reason of apathy and directed that he receive a General Discharge Certificate.  On 29 August 1974, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 1 year, 7 months, and 25 days of creditable active military service and he had 8 days of lost time due to being AWOL.  

12.  On 15 October 1975, the Chief, Enlisted Division, and the Chief, Promotion and Separation branch, Headquarters, Department of the Army, reviewed the applicant’s discharge and opined that the requirements for the applicant’s discharge under the Expeditious Discharge Program were met and a general discharge was warranted.  After serving 14 months with the 23rd Engineer Battalion, the applicant never advanced beyond the rank/grade of PV2/E-2, he was AWOL for 8 days, was counseled on six different occasions, and was reassigned to new positions on three different occasions.  

13.  On 15 December 1975, the Army Board for Correction of Military Records notified the applicant that there was insufficient evidence to indicate there was a probable or a material error or injustice in his discharge. 

14.  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.

15.  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.

16.  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.  There is no evidence in the available records that the applicant suffered from or was denied treatment for hernia, back problems, muscles, or mental problems during his military service.  Furthermore, there is no evidence that he addressed such issues with his chain of command or the medical facilities available at his installation.  Additionally, there is no evidence in the available record and the applicant failed to provide any evidence that shows he was mistreated or that his AWOL, apathy, or unsuitability were a result of his alleged mistreatment. 

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 inability to advance beyond the rank of PV2, AWOL, Article 15, multiple counseling, and multiple job transfers.  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)                                         AR20080009788



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ABCMR Record of Proceedings (cont)                                         AR20080009788



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