IN THE CASE OF:	  

		BOARD DATE:	  	  24  March 2009

		DOCKET NUMBER:  AR20090000388 


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 discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, he does not know if his discharge was in error or unjust; however, he is starting technical school and he could receive a tuition discount if his discharge is characterized as honorable.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 24 October 1980.

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 U.S. Army Reserve for a period of 6 years in the Delayed Entry Program on 26 May 1979.  He then enlisted and entered active duty in the Regular Army for a period of
3 years on 25 September 1979.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 63F (Track Wheel Vehicle Mechanic).

3.  The applicant's military personnel records contain six Headquarters, Service Battery, 2nd Battalion, 36th Field Artillery, Fort Sill, Oklahoma, memoranda, subject:  Counseling and Rehabilitation, dated 13 February, 17 April, 24 April,
15 May, 17 July, and 6 October 1980.  These documents show the applicant was counseled on 5 occasions by noncommissioned officers (NCOs) in his chain of supervision and once by his commanding officer for frequent incidents related to failure to be at his appointed place of duty and substandard duty performance.

4.  The applicant's military personnel records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated
5 August 1980, that shows nonjudicial punishment was imposed by the company commander against the applicant for, on or about 0615 hours, 26 July 1980, without authority, failing to go at the time prescribed to his appointed place of duty, to wit:  extra training session on physical training, in violation of Article 86, UCMJ.  The punishment imposed was detention of $50.00 pay for one month,
7 days extra duty, and 7 days restriction.

5.  The applicant’s military personnel records contain a DA Form 4126-R (Bar to Reenlistment Certificate), dated 14 October 1980.  This document shows that the company commander documented his recommendation that the applicant be barred from reenlistment in the U.S. Army.  The reasons cited by the commander were based on the applicant’s failure to adapt to military standards pertaining to attendance of formations and absence from his place of duty.  The applicant indicated that he did not desire to submit a statement in his own behalf in response to the commander’s recommendation that the applicant be barred from reenlistment.  On 16 October 1980, the Commander, 75th Field Artillery Group, Fort Sill, Oklahoma, approved the bar to reenlistment and notified the applicant of his right to appeal imposition of the bar to reenlistment.  There is no evidence that the applicant submitted an appeal to the bar to reenlistment.

6.  The applicant's military personnel records contain a DA Form 2627, dated
21 October 1980, that shows nonjudicial punishment was imposed by the battalion commander against the applicant for, on or about 1800 hours,
9 October 1980, without authority, failing to go at the time prescribed to his appointed place of duty, to wit:  Battery Formation, in violation of Article 86, UCMJ.  The punishment imposed was reduction to the grade of Private (E-1) and forfeiture of $250.00 pay per month for one month.

7.  On 17 October 1980, the applicant was notified by his company commander that separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 5 (Separation for Convenience of the Government), paragraph 5-31 (Expeditious Discharge Program (EDP)), was being initiated against him and that a general discharge under honorable conditions was being recommended.  The reasons for the separation action cited by the company commander were the applicant’s poor attitude, lack of motivation, and demonstrated inability to meet acceptable standards required of enlisted personnel in the Army.  The company commander also advised the applicant that he had the right to decline this separation and, if he declined and his subsequent conduct warranted, he may be subject to disciplinary or administrative separation procedures under other provisions of law or regulation.  The applicant was advised that he had the right to submit a statement in his behalf or waive this right, he would not be permitted to apply for enlistment in the U.S. Army within 2 years from his separation date, and that there is no automatic upgrading nor review by any government agency of his discharge or character of service which is less than honorable.

8.  On 17 October 1980, the applicant acknowledged with his signature that he received the separation notification, he voluntarily accepted discharge from the U.S. Army, and waived his right to submit statements in his own behalf.  The applicant also acknowledged that, if he received a general discharge, he understood its effects and that he could expect to encounter substantial prejudice in civilian life.  The applicant’s statement also shows he was provided the opportunity to consult with an officer of the Judge Advocate General’s Corps.  The applicant indicated that he understood that there is no automatic upgrading nor review by any government agency of a characterization of service which is under honorable conditions, and that he must make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for review of the characterization of service; however, an act of consideration by either board did not imply that his discharge will be upgraded.  The applicant also acknowledged he would be ineligible to apply for enlistment in the U.S. Army for a minimum period of 2 years after discharge.

9.  On 17 October 1980, the applicant’s company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 5-31, and furnished a general discharge under honorable conditions. The company commander also recommended that the applicant not be assigned to the Individual Ready Reserve (IRR).

10.  On 20 October 1980, the lieutenant colonel serving as Commander,
2nd Battalion, 36th Field Artillery, Fort Sill, Oklahoma, approved the separation action and directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 5-31, and furnished a General Discharge Certificate.  The commander also directed that the applicant not be assigned to the IRR.

11.  The applicant’s military personnel records contain a DD Form 214 with an effective date of 24 October 1980.  This document confirms that the applicant was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 5-31h(2), EDP based on failure to maintain acceptable standards for retention and he was issued Separation Code “JGH.”  This document also shows that, at the time of his discharge, the applicant was credited with completing 1 year and 1 month of net active service this period and 3 months and 29 days of total prior inactive service.

12.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.

13.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 5 set forth the conditions under which enlisted personnel could be discharged, released from active duty or active duty for training, or released from military control for the convenience of the Government with service characterized as honorable or under honorable conditions, as appropriate.  Paragraph 5-31 provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army.  This document also shows, in pertinent part, an enlisted Soldier may be separated under the provisions of the EDP when they fail to respond to counseling for one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and failure to demonstrate promotion potential.  It also provides that personnel whose performance of duty, acceptability for the Service, and potential for continued effective service falls below standards required for enlisted personnel in the U.S. Army may be discharged.  An honorable discharge or general discharge could be issued under this program.  

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JGH” as the appropriate code to assign enlisted Soldiers involuntarily discharged under the provisions of Army Regulation
635-200, Chapter 5, paragraph 5-31, for failure to maintain acceptable standards for retention.

16.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his general discharge under honorable conditions should be upgraded to an honorable discharge because he is starting technical school and could receive a tuition discount if his character of discharge is honorable.

2.  The evidence of record shows that the applicant’s discharge processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met and the applicant’s rights were protected throughout the separation process.  The evidence of record further confirms that the applicant voluntarily consented to the discharge.  In addition, the evidence of record shows that the authority, narrative reason, and SPD Code recorded on the applicant’s discharge are valid.  Therefore, it is concluded that the applicant’s discharge was not in error or unjust.

3.  The evidence of record shows that the applicant’s company commander recommended the applicant’s discharge under the EDP based upon his poor attitude, lack of motivation, and demonstrated inability to meet acceptable standards required of enlisted personnel in the Army.  The evidence of record also shows that NCOs in the applicant’s chain of supervision and his company commander counseled him several times concerning frequent incidents related to the applicant’s failure to be at his appointed place of duty and his substandard duty performance, and that nonjudicial punishment was imposed against the applicant on at least two occasions.  In addition, the evidence of record shows the applicant completed only 1 year and 1 month of his 3-year enlistment commitment.  Thus, the evidence of record clearly shows the applicant’s relatively short record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

4.  The evidence of record shows that prior to his separation, the applicant was advised of the effects of a separation under other than honorable conditions and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.  In addition, the applicant indicated that he understood these facts.  Moreover, the U.S. Army does not upgrade a former Soldier's discharge solely to enhance his or her eligibility for government benefits, including educational incentives or subsidies.  Thus, in view of all of the foregoing, the applicant provides insufficient evidence to support his request for upgrade of the character of service of his discharge.

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)                                         AR20090000388



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ABCMR Record of Proceedings (cont)                                         AR20090000388



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