IN THE CASE OF:	

		BOARD DATE:	 27 January 2009 

		DOCKET NUMBER:  AR20080017447 


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 he was not prepared for the total responsibility of living away from his small town and facing the realities of supporting his family.  He states his wife and new-born son joined him in Colorado in mid-January 1975.  He states when he and his family returned from leave he was informed he was going to Germany.  He states he requested through his chain of command and the chaplain to remain in Colorado and not be assigned to Germany because he did not feel his family could live without his support.  He states his commander asked him if he wanted to be processed out and he advised that if that was the only alternative, he wanted to process out of the Army.  He states he now needs his discharge upgraded so he can qualify for a veterans property tax abatement in his town.

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Report of Separation From Active Duty) with an effective date of 26 February 1976 and three reference letters.

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 records show he enlisted in the Regular Army on 31 May 1974 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 12B (Combat Engineer).

3.  On 26 September 1974, the applicant was assigned to Company D, 4th Engineer Battalion at Fort Carson, Colorado.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 5 March and 10 December 1975.  His offenses included being absent without leave (AWOL) during the periods from 24 February to 3 March 1975 and from 25 November to 26 November 1975.

5.  On 23 January 1976, the applicant’s commander notified the applicant that he was initiating action to discharge him under the provisions of paragraph 5-37 of Army Regulation 635-200 (Personnel Separations) due to the applicant’s inability to adapt to military life.  The commander stated that due to the applicant’s and his family's feelings toward the Army and his wife's inability to adjust to his participation in field training exercises and other military duties the applicant was developing an AWOL record and was unable to cope with military service.  The commander stated that continued retention of the applicant would only result in his elimination from the service under other administrative procedures or judicial action.  The commander stated that he was recommending the applicant receive a General Discharge Certificate.

6.  The commander advised the applicant that the type of discharge he would be issued rests with the discharge authority and 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’s Corps prior to completing his acknowledgements, his right to decline this discharge, and his right to submit a statement in his own behalf.

7.  The applicant acknowledged notification of his proposed discharge, voluntarily consented to be discharged, and indicated he desired 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.

8.  On 23 January 1976, the applicant’s commander recommended the applicant for discharge due to the applicant’s failure to properly adjust to the military service and that he be issued a General Discharge Certificate.

9.  On 18 February 1976, the appropriate authority approved the applicant’s expeditious discharge and directed that he be furnished a General Discharge Certificate.

10.  On 26 February 1976, the applicant was discharged under the provisions of paragraph 5-37 of Army Regulation 635-200.  He had completed 1 year, 8 months, and 26 days of active service that was characterized as under honorable conditions.

11.  A letter from two persons known by the applicant attests to his good character and the fact that he has a good disposition making him easy to work with.

12.  A letter from the applicant's neighbors attests to the fact that he is a tremendous asset to the community and a great neighbor.  The neighbors stated they have observed the applicant's dedication and compassion that he has exhibited toward his family and his community.

13.  A letter from the fire commissioner attests to the applicant being a hard worker and his being dependable and responsible in exercising both his family and civic duties.  The commissioner also stated the applicant had been a model citizen, contributing in any way he could to promote good will and harmony in the town.

14.  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.

15. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37 (Expeditious Discharge Program (EDP)) 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 provides that no individual will be discharged under this program unless the individual voluntarily consents to the proposed discharge.  Individuals discharged under this regulation were issued either a general or honorable discharge.

16.  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 Individual Ready Reserve 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 will be discharged.

17.  Army Regulation 635-200 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.  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 applicant voluntarily consented to the proposed discharge.  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.

2.  The applicant completed less than 2 years of his 3 year enlistment.  During that short period he had been AWOL twice for a total of 15 days and had received NJPs.  His pattern of misconduct and his commander's statement that continued retention of the applicant would only result in his elimination from the service under other administrative procedures or judicial action indicates the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Therefore, the applicant did not meet the criteria established for an honorable discharge.

3.  The applicant's post service achievements and conduct are noted.  However, good post service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.
4.  The applicant contends he needs an upgraded discharge to qualify for a property tax abatement in his town.  However, the ABCMR does not upgrade discharges solely to make an individual eligible for benefits from another agency.

5.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's general discharge under honorable conditions.

6.  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)                                         AR20080017447





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ABCMR Record of Proceedings (cont)                                         AR20080017447



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