IN THE CASE OF:	  

		BOARD DATE:	       12 November 2008

		DOCKET NUMBER:  AR20080013525


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 prior to his arrival at Fort Hood, Texas, he had been stationed at Schofield Barracks, Hawaii, and was an exemplary Soldier with only one disciplinary problem.  He had completed the Primary Noncommissioned Officer Course and had received 3 accelerated promotions.  His problems started at Fort Hood, specifically with his platoon sergeant who lied to create a problem with the discharge.  He further adds that he was supposed to receive an early discharge due to family hardship and that his commanding officer met with him and advised him to report to his office the next day to receive an honorable discharge.  However, his platoon sergeant informed him that his appointment had been rescheduled to another day.  As a result, he showed up at the commanding officer’s office a day late.  In his anger, the commanding officer did not want to hear the applicant’s explanation and punished him by changing his pending discharge to a general discharge and barring him from reenlisting.

3.  The applicant provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 23 October 1979; a copy of his immunization record; and a copy of page 2 of his 4-page DA Form 2-1 (Personnel Qualification Record).

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 4 years on 12 January 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  The applicant’s records further show he was awarded the Sharpshooter Marksmanship Qualification Badge with Grenade Bar and the Expert Marksmanship Qualification Badge with Rifle Bar.  His records do not reveal any achievements or acts of special recognition during his military service.

4.  The applicant's records show that he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 10 April 1979 for violating a general regulation by failing to have a firearm (pistol) registered on or about 8 March 1979, violating a general regulation by discharging his firearm in an area not designated as a range and for other than a hunting purpose on or about 8 March 1979, and violating a general regulation by wrongfully having a firearm in his possession on or about 8 March 1979.  His punishment consisted of reduction to the rank/grade of private first class (PFC)/E-3, forfeiture of $100.00 pay for one month, and 14 days of extra duty.

5.  The applicant’s records reveal a history of counseling by members of his chain of command as follows:  

	a.  on 25 June 1979, for twice being absent from morning formation on 21 June 1979 and 22 June 1979 and failure to report to his squad leader on 21 June 1979; 

	b.  on 27 June 1979, for being absent from his appointed place of duty on 26 June 1979; 

	c.  on 27 June 1979, for missing morning squad formation and failing to inform supervisor of his appointment; and

	d.  on 28 June 1979, for being absent from morning formation.

6.  The applicant's records reveal that he accepted more nonjudicial punishment under the provisions of Article 15 of the UCMJ as follows:

	a.  on 3 July 1979, for twice failing to go at the prescribed time to his appointed place of duty on or about 26 June 1979 and on or about 28 June 1979. His punishment consisted of reduction to private (PV2)/E-2 (suspended for 60 days), forfeiture of $109.00 pay per month for one month, and 7 days of correctional custody (suspended for 60 days).  However, on 1 August 1979, the suspension of the punishment of reduction to PV2/E-2 and performance of correctional custody imposed against him on 3 July 1979 was vacated; and 

	b.  on 12 October 1979, for being absent without leave (AWOL) during the periods on or about 25 September 1979 through on or about 1 October 1979 and on or about 9 October 1979 through on or about 11 October 1979.  His punishment consisted of forfeiture of $109.00 pay for one month, 14 days of extra duty, and 14 days of restriction.  He appealed his punishment on 12 October 1979; however, the next superior authority denied his appeal on the same day.

7.  On 12 October 1979, the applicant’s immediate commander notified the applicant of his intent to initiate action to discharge him from the Army under the provisions of chapter 5 of Army Regulation (AR) 635-200 (Personnel Separations), Expeditious Discharge Program (EDP), by reason of poor attitude, lack of motivation, lack of self discipline, failure to demonstrate promotion potential, inability to accept instructions and directions, substandard performance, and lack of cooperation with peers and superiors.  The immediate commander recommended a General Discharge Certificate.

8.  On 12 October 1979, the applicant acknowledged receipt of the notification memorandum.  He consulted with legal counsel and was advised of the basis for the contemplated separation from the Army under the provisions of chapter 5 of AR 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.  The applicant voluntarily consented to this separation and declined making a statement.  He further acknowledged that he understood that if he were issued a General Discharge Certificate, he could expect to encounter substantial prejudice in civilian life.  He further declined submitting a statement on his own behalf.

9.  On 12 October 1979, the applicant’s immediate commander recommended the applicant be discharged in accordance with chapter paragraph 5-31 of AR 635-200, EDP and be issued a General Discharge Certificate.

10.  On 12 October 1979, the separation authority approved the applicant's discharge for failure to meet acceptable standards for continued military service and directed that he receive a General Discharge Certificate.  On 23 October 1979, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 2 years, 9 months, and 3 days of creditable active military service and had 9 days of lost time due to AWOL.

11.  On 10 July 1981, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.

12.  AR 635-200, in effect at the time, set forth 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 EDP.  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.  AR 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 contends that his discharge should be upgraded.

2.  There is no evidence in the available record and the applicant did not provide any substantiating evidence that shows he was promised or notified that his discharge would be honorable or that his platoon sergeant undermined his discharge.

3.  The evidence of record shows that the applicant voluntarily consented to the discharge under the EDP.  His discharge 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 were appropriate considering all the facts of the case.

4.  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, lack of response to counseling, and two instances of AWOL.  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

___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.


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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)                                         AR20080013525



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ABCMR Record of Proceedings (cont)                                         AR20080013525



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