IN THE CASE OF:	  

		BOARD DATE:	  23 October 2008

		DOCKET NUMBER:  AR20080011368 


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 general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, that at the time of his discharge, he was having personal problems the he could not take care of while serving overseas.   

3.  The applicant provides no 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 record shows that he enlisted in the Regular Army and entered active duty on 25 October 1979.  He successfully completed One Station Unit Training (OSUT) at Fort Leonard Wood, Missouri, and was awarded military occupational specialty (MOS) 12C (Bridge Specialist).     

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he was advanced to private/E-2 (PV2) on 25 April 1980, and that this is the highest rank he attained while serving on active duty.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant's record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions.  

5.  On 16 October 1980, he accepted NJP for being absent without leave (AWOL) from 4 September through 2 October 1980.  His punishment for this offense was a reduction to private/E-1 (PV1), forfeiture of $250.00 per month for two months, and 30 days of extra duty.  

6.  On 19 December 1980, the applicant accepted NJP for being AWOL from 
10 through 11 December 1980 and for failing to go at the time prescribed to his appointed place of duty on 12 December 1980.  His punishment for these offenses was a forfeiture of $116.00 (suspended) and 14 days of restriction and extra duty.

7.  On 8 January 1981, his unit commander notified the applicant of his intent to initiate action to separate him under the provisions of the Expeditious Discharge Program (EDP), and that he was recommending the applicant receive a GD.  The unit commander cited the applicant’s lack of motivation and self-discipline necessary to adapt to military life as the basis for taking the action.  

8.  The applicant acknowledged the notification in writing and indicated that he voluntarily consented to this discharge.  He further acknowledged that he understood that if he received a GD, he could expect to encounter substantial prejudice in civilian life, and he acknowledged that he had been afforded the opportunity to consult with legal counsel.  The applicant also elected not to make a statement in his own behalf.  

9.  On 19 January 1981, the separation authority approved the applicant’s separation under the provisions of the EDP, and directed the applicant receive a GD.  On 3 February 1981, the applicant was discharged accordingly.  

10.  The separation document (DD Form 214) issued to the applicant upon his discharge shows he was separated under the provisions of paragraph 5-31, Army Regulation 635-200 (EDP), after completing 1 year, 2 months, and 11 days of creditable active military service, and accruing 28 days of time lost due to AWOL.  

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, paragraph 5-31, then in effect, provided the policy and outlined the procedures for separating individuals under the EDP.  The EDP provided for the separation of Soldiers 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.  

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 applicant's contention that his discharge should be upgraded because he was experiencing personal problems he could not solve from overseas at the time of his discharge was carefully considered; however, there is insufficient evidence to support this claim.  This factor alone is also not sufficiently mitigating to support granting the requested relief. 

2.  The evidence of record confirms the applicant was properly notified by his unit commander that he was initiating action to separate the applicant under the provisions of the EDP and that he was recommending the applicant receive a GD based on his substandard performance and record of misconduct.  In addition, the record confirms the applicant was properly notified that his unit commander was recommending he receive a GD, and that the applicant was advised of the consequences of such a discharge, prior to his voluntarily consenting to the discharge.  


3.  The evidence of record confirms the applicant's separation processing under the provisions of the EDP was accomplished in accordance with the applicable regulation, and that the applicant voluntarily consented to the discharge and elected not to make a statement in his own behalf.  All requirements of law and regulation met, and his rights were fully protected throughout the separation process.  

4.  The applicant's record reveals a disciplinary history that clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, absent any evidence of error or injustice, there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.  

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.

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)                                         AR20080011368



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ABCMR Record of Proceedings (cont)                                         AR20080011368



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