IN THE CASE OF:	  

		BOARD DATE:	       28 October 2008

		DOCKET NUMBER:  AR20080010031 


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 that his general discharge (GD) under honorable conditions be upgraded.

2.  The applicant states, in effect, that he served during the time that troops were returning from Vietnam and got caught up in the widespread drug environment.  He felt that he needed to repay the military for his failure so he has worked as a military club waiter and operations assistant.  He believes he has served his time in other ways and now warrants an honorable discharge.

3.  The applicant provides copies of his DD Form 214 (Report of Separation From Active Duty), an undated letter of appreciation, a character reference, a job conversion form, a certificate of completion of a Business Management Training course, and a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).

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 entered active duty on 30 January 1973, he completed training, and was assigned duty as a wheeled vehicle mechanic in Germany from 19 June 1973 through 19 January 1976.

3.  He received nonjudicial punishment under Article 15, Uniform Code of Military Justice as follows:

	a.  on 6 November 1973, for being absent without leave for 10 hours;

	b.  on 25 February 1974, for failure to go to his appointed place of duty; and 

	c.  on 3 April 1974, for failure to go to his appointed place of duty.

4.  On 23 July 1974, the applicant's unit commander initiated separation actions under the Expeditious Discharge Program.  The unit commander stated the reason for his action was the applicant's inability to adapt to military life and that his duty performance was below the standards required by military personnel.

5.  The applicant acknowledged the proposed separation and waived his rights to counsel.  He was advised of the effects of a GD under honorable conditions and that he might be deprived of many or all Army and VA benefits.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

6.  On 29 July 1974, the discharge authority directed that the applicant be separated under the Expeditious Discharge Program due to unsuitability by reason of apathy, defective attitude, and an inability to expend effort constructively with a General Discharge Certificate.

7.  The applicant was discharged under honorable conditions in accordance with Department of Army Message DAPE-MPE-PS date time group 062006Z June 74 with a separation program designator of KMN, Expeditious Discharge Program.

8.  The evidence of record indicates the applicant applied to the Army Discharge Review Board on 26 May 2008 outside of the ADRB's 15-year statute of limitation.



9.  In an undated letter of appreciation, the Chief, Business Operations Division, 414th Base Support Battalion, expressed his appreciation for the applicant's dedication and commitment during the organizations period of a draw down.

10.  A memorandum, dated 25 January 1990, shows the manager of the Skyline Club, Hanau, Germany, stated that the applicant had worked as a waiter in 1989 and filled the position of Club Operation Assistant.  His work had been excellent.  Based on his knowledge and expertise he was recommended for positions of opportunity and greater responsibility.

11.  A Notification Personal Action Form, covering the period from 19 November 1987 through 23 June 1989, shows the applicant was released from his position as a Club Operations Assistant due to a decrease in customer base and reduced operating hours.

12.  Department of Army Message DAPE-MPE-PS date time group 062006Z June 74 authorized the Commander in Chief, United States Army Europe to test a new discharge program, entitled the Expeditious Discharge Program (EDP).  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated under the EDP.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to be afforded the opportunity to consult with legal counsel.  A separation program designator (SPD) of "KMN" was the appropriate designator for a discharge due to unsuitability.

13.  Army Regulation 635-200 sets forth the purpose and policies for enlisted personnel separations.  Chapter 1, as in effect at that time, outlines the criteria for characterization of service.  Paragraph 1-13a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  Paragraph 1-13a(1) in pertinent part states:  "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Art l5."  "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."  Paragraph 1-13b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 
DISCUSSION AND CONCLUSIONS:

1.  The applicant's records contain no indication that drug related problems played any part in the command's decision to separate him.  He was discharged for unsuitability, because of apathy, defective attitude, and an inability to expend his efforts constructively.

2.  The applicant’s continuous association with the military community was considered, however, this association was insufficient to mitigate his misconduct and poor performance while on active duty. 

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

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)                                         AR20080010031



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ABCMR Record of Proceedings (cont)                                         AR20080010031



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