IN THE CASE OF:	  

		BOARD DATE:	  2 April 2009

		DOCKET NUMBER:  AR20090002053 


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 (GD) be upgraded to a fully honorable discharge (HD).

2.  The applicant states, in effect, he wants his GD upgraded to an HD.

3.  The applicant provides no evidentiary documents 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 record shows that he enlisted in the Regular Army and entered active duty on 22 January 1980.  He successfully completed one station unit training (OSUT) at Fort Benning, Georgia.  Upon completion of OSUT, he was awarded military occupational specialty 11B (Infantryman).
3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was advanced to private two/E-2 (PV2) on 1 November 1980 and that this is the highest rank he attained while serving on active duty.  Item 21 (Time Lost) shows he accrued a total of 12 days of time lost for twice being absent without leave (AWOL) from 9-13 October 1981 and from 22-28 October 1981.

4.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  It does reveal a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 2 April 1981 for defacing the property of the United States government by painting a guard shack with a different color than the original color.

5.  On 10 November 1981, his unit commander notified the applicant of his intent to initiate action to separate him under the provisions of the Expeditious Discharge Program (EDP) and that he was recommending the applicant receive a GD.  The unit commander cited the applicant’s poor attitude displayed toward the military and his inability to adapt socially and emotionally as the basis for the action.

6.  The applicant acknowledged the notification in writing and indicated that he voluntarily consented to this discharge.  He further acknowledged that he understood that if he received a GD, he could expect to encounter substantial prejudice in civilian life, and he acknowledged that he had been afforded the opportunity to consult with legal counsel.  The applicant also elected not to make a statement in his own behalf.

7.  On 15 November 1981, the separation authority approved the applicant’s separation under the provisions of the EDP and directed the applicant receive a GD.  On 11 December 1981, the applicant was separated accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was separated under the provisions of paragraph 5-31, Army Regulation 635-200 (Personnel Separations), after completing 1 year,               10 months, and 8 days of active military service and accruing 12 days of time lost due to AWOL.

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, paragraph 5-31, then in effect, provided the policy and outlined the procedures for separating individuals under the EDP.  The EDP provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.  An HD or GD could be issued under this program.

10.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention his GD should be upgraded to a fully HD was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant's separation processing under the provisions of the EDP was accomplished in accordance with the applicable regulation and that the applicant voluntarily consented to the discharge and elected not to make a statement in his own behalf.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The applicant's record reveals a disciplinary history that clearly diminished the quality of his service below that meriting a fully honorable discharge.  Therefore, absent any evidence of error or injustice, there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.

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.

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)                                         AR20090002053



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ABCMR Record of Proceedings (cont)                                         AR20090002053



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