IN THE CASE OF:	

		BOARD DATE:	  8 January 2009

		DOCKET NUMBER:  AR20080015414 


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 his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states the characterization of his service was related to a field grade Article 15 that he appealed, requesting a personal appearance that was never granted.  He further states the insubordinate statement that he made was in an informal setting and was made jokingly, not intending to be disrespectful.  He states he should have letters of commendation and/or recognition that should have been considered.  He also states he was immature and did not consider the impact of his behaviors.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 18 August 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 military personnel record shows he initially enlisted, at age 19, in the Regular Army on 3 December 1980 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 95B (Military Police).

3.  On 9 April 1981, the applicant was assigned to the 556th Military Police Company in Germany.

4.  On 1 February 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to initiate the proper challenge in accordance with the Siegelsbach Site Security Defense Plan, Annex 12.  The applicant received a reduction to private/pay grade E-2, forfeiture of $144 for one month, and 14 days extra duty.  The applicant appealed to the next superior authority.  On 19 February 1982, the next superior authority denied the applicant's appeal.

5.  On 23 April 1982, the applicant accepted NJP under Article 15, UCMJ for disrespectful language to a noncommissioned officer who was then in the execution of his office and using wrongfully provoking words toward a noncommissioned officer.  The applicant received a reduction to private/pay grade E-1, forfeiture of $100 per month for 2 months, and correctional custody for 30 days.  The applicant appealed to the next superior authority.  A Judge Advocate General Corps captain considered the appeal and determined that the proceedings were conducted in accordance with law and regulations, with the exception that there was no review prior to action on the appeal.  However, it was the captain's opinion that the error did not materially prejudice the substantial rights of the service member and the punishment imposed was not disproportionate to the offenses committed.

6.  On 10 May 1982, the next superior authority denied the applicant's appeal.

7.  On 25 June 1982, the applicant’s commander notified the applicant that he was initiating action to discharge the applicant under the provisions of paragraph 5-31 (Expeditious Discharge Program [EDP]) of Army Regulation 635-200 (Personnel Separations).  The commander stated the reasons for his proposed action were the applicant's poor attitude, lack of motivation, display of poor conduct, and his inability to adapt socially or emotionally to military service.  The commander stated he was recommending the applicant’s service be characterized as under honorable conditions.
8.  The commander advised the applicant that the decision as to whether he would be separated, whether he was to be discharged or transferred to the Individual Ready Reserve (IRR), and the characterization of his service rested with the discharge authority.  The applicant was further advised that if he received a general discharge he may expect to encounter substantial prejudice in civilian life.  The commander also advised the applicant of his right to consult with an officer of the Judge Advocate General Corps prior to completing his acknowledgements.  The commander advised the applicant of his right to submit a statement in his own behalf.  He further advised the applicant that he would not be permitted to apply for enlistment in the United States Army within 2 years from his date of separation and that there is no automatic upgrading nor review by any government agency of any discharge certificate or character of service which is less than honorable.  

9.  On 1 July 1982, the applicant acknowledged notification of his proposed discharge, and waived his right to submit a statement.  The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  The applicant also acknowledged he would not be transferred to the IRR and he did wish to see counsel.

10.  The applicant received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

11.  On 21 July 1982, the applicant’s commander recommended the applicant for discharge in accordance with paragraph 5-31 of Army Regulation 635-200.  The commander cited 11 formal counseling sessions by the applicant's chain of command for his failure to follow instructions, not shaving, failure to repair, poor attitude, disrespect to a noncommissioned officer, and substandard performance.
The commander stated it was clearly evident that the applicant had a poor attitude, lack of motivation, and he displayed poor conduct and was unable to adapt socially or emotionally.  The commander recommended that the applicant be discharged under honorable conditions at the earliest possible date and that he not be transferred to the IRR.

12.  On 2 August 1982, the appropriate authority approved the applicant’s discharge under the provisions of paragraph 5-31 of Army Regulation 635-200, directed that the applicant not be transferred to the IRR, and that his service be characterized as under honorable conditions.

13.  On 18 August 1982, the applicant was discharged under the provisions of paragraph 5-31 of Army Regulation 635-200.  He had completed 1 year, 
8 months and 16 days of active service that was characterized as under honorable conditions.  

14.  The applicant's Military Personnel Records Jacket (MPRJ) does not contain any letters commending or recognizing the applicant for achievements during his period of military service.

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

16.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31 of this regulation provided for the discharge of enlisted personnel who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  The regulation provided that no individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge; however, this requirement was deleted with interim change 4, dated 1 April 1982.  Individuals discharged under this regulation were issued either a general or honorable discharge.

17.  Army Regulation 635-200, then in effect, provides that those Soldiers processed under the EDP may be released from active duty and transferred to the IRR to complete their military obligation if deemed to have the potential for service under conditions of full mobilization.  Soldiers deemed to have no potential for useful service under conditions of full mobilization were to be discharged.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be upgraded to an honorable discharge.  He contends the characterization of his service was based on a field grade Article 15 that he had appealed and was never given a personal hearing as requested.  He also contends that letters of commendation and/or recognition were not taken into consideration.



2.  The applicant's MPRJ did not contain any letters commending or recognizing the applicant for achievements during his period of military service.  The characterization of the applicant's service was based on his entire period of service and not just a single incident.  The fact that he had 11 formal counseling sessions over an 8 month period concerning his performance and two Article 15's is indicative of his poor performance and was the basis for the characterization of his service as under honorable conditions. 

3.  The applicant’s age at time of his enlistment was noted.  However, many Soldiers were enlisted at the applicant's age or younger and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly issued discharge.

4.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The applicant’s commander notified him of the reasons and the type of discharge the commander was recommending.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

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 that 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)                                         AR20080015414



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ABCMR Record of Proceedings (cont)                                         AR20080015414



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