IN THE CASE OF:	  

		BOARD DATE:	        16 APRIL 2009

		DOCKET NUMBER:  AR20080018680 


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 be upgraded to a fully honorable discharge. 

2.  The applicant states that he was released from the Army after having a medical operation on active duty, and that there was a Congressional investigation.  He also contends that he was under a medical profile before the Army discharged him, but that his medical problem was not addressed before he was discharged.  Additionally, he states that he is now having problems with his leg and has had serious problems because of his discharge, and that he needs his discharge reviewed for a better chance to receive benefits.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in support of this 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 records show that he enlisted in the Regular Army on 30 March 1979.  He completed basic combat training at Fort Knox, Kentucky, then was reassigned to Aberdeen Proving Ground, Maryland for advanced individual training.

3.  Between 21 August 1979 and 10 July 1980, the applicant was counseled on at least 13 occasions for:

	a.  violating his profile by dancing at a club;

	b.  violating his sick-in-quarters status after he had a cast put on by going to a club;

   c.  failing to wake up at the prescribed time;
   
   d.  his lack of being a professional Soldier;
   
   e.  violating his profile by playing basketball;
   
   f.  being accused of stealing a wallet, in which the U. S. Army Criminal Investigation Command (USACIDC, also known as CID) was called due to the fact that the applicant said that he could get the Soldier's wallet back if the Soldier gave him $50.00;
   
   g.  filling out a false identification card application;
   
   h.  being disrespectful to a noncommissioned officer and missing formation;
   
   i.  losing his identification card by neglect for a second time;
   
   j.  running up his mother's telephone bill for 2 months and not giving her any money to pay those bills;
   
   k.  refusing to have his wall locker prepared for inspection and taking a negative attitude about the inspection;
   
   l.  failing to go to his proper place of duty; and
   m.  leaving a detail and not returning, and later being found asleep during duty hours.

4.  On or about 21 April 1980, the applicant was expelled from the Basic Skills Education Program.

5.  On 24 April 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for stealing two rolls of film of a value of about $4.20 from the Post Exchange, willfully disobeying a lawful command from his superior commissioned officer, and failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of reduction in rank/grade from private (PV2)/E-2 to private (PV1)/E-1, 45 days of extra duty, and 60 days of restriction.

6.  On 14 July 1980, the applicant’s company commander notified him that he was initiating action to discharge him from the U.S. Army under the provisions of paragraph 5-31 (Expeditious Discharge Program), Army Regulation 635-200 (Personnel Separations - Enlisted Separations).  He also recommended that the applicant be furnished a General Discharge Certificate.  The reasons for his proposed actions were that the applicant had failed to meet the minimum acceptable standards of a Soldier in the U.S. Army, which was demonstrated by his lack of motivation and lack of self-discipline.  He was also informed that prior to his rehabilitative transfer, his conduct indicated that he was unable to accept and adapt socially or emotionally to military life.  He was further advised that there had been no improvement since his rehabilitative transfer, and that despite repeated counselings by his chain of command, retesting of his military battery scores, and other assistance provided to him by his company, he failed to show the motivation and self-discipline necessary in a Soldier.  Further, his company commander informed him that he had used his medical condition as a means to disguise the fact that he was a poor Soldier.  The applicant was also advised of his rights.

7.  Additionally on 14 July 1980, the applicant acknowledged notification of his proposed separation from the U.S. Army under the provisions of paragraph 5-31, Army Regulation 635-200, and voluntarily consented to his separation.  He elected to submit a statement in his own behalf.  He also understood that if his service was characterized as under honorable conditions, he could expect to encounter substantial prejudice in civilian life, and acknowledged that he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps.


8.  In his statement in his own behalf, the applicant stated that he received a medical operation on his right leg in August 1979, which was going to take a long time to heal and that he would not be able to stand for long periods of time.  He also stated that his company was informed of this in October 1979, and that they were to take action to reclassify him, but did not.  He further stated, in pertinent part, that he was told in May 1980 that nothing could be done for him because of his scores and profile, and that he was never given help for a problem.  He requested that, more than anything in the world, he receive a discharge under the Expeditious Discharge Program, which would give his medical problem a chance to resolve itself and a chance at raising his General Technical (GT) score so he could return to the service after 2 years.

9.  On 17 July 1980, the proper separation authority approved the applicant’s discharge under the provisions of paragraph 5-31, Army Regulation 635-200, and directed that he receive a General Discharge Certificate.  On 21 July 1980, the applicant was discharged accordingly.

10.  On 20 June 1988, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge and change his narrative reason for separation.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31, then in effect, provided the policy and outlined the procedures for separating individuals under the Expeditious Discharge Program.  This program provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.  An honorable or general discharge could be issued under this program.

12.  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.  

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded to a fully honorable discharge.

2.  The applicant's contention that he was under a medical profile and that his medical problem was not addressed prior to his discharge was considered.  However, as the applicant repeatedly violated his profile by dancing and playing basketball, any medical problems he was experiencing were just as likely as not  self-induced.  Additionally, while the applicant may have had a physical profile, there is no evidence in his military records which shows that he was issued a permanent physical profile which required disposition through medical channels.

3.  The fact that the applicant is requesting that his discharge be upgraded so that he has a better chance to receive benefits was noted; however, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for benefits.

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.  

5.  The applicant's military records show that he accepted NJP under Article 15 of the UCMJ for stealing two rolls of film from the Post Exchange, willfully disobeying a lawful command from his superior commissioned officer, and failing to go at the time prescribed to his appointed place of duty.  He was also repeatedly counseled for varied acts of misconduct.  Given the number of instances of misconduct, the applicant failed to provide evidence which proves that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

6.  The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he 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.



      _______XXX________________
               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)                                         AR20080018680



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ABCMR Record of Proceedings (cont)                                         AR20080018680



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