IN THE CASE OF:	

		BOARD DATE:	11 June 2009  

		DOCKET NUMBER:  AR20090003123 


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 an upgrade of his general discharge. 

2.  The applicant states he was recently informed he could request an upgrade of his discharge. 

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 26 October 1979, 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 records show he enlisted in the Regular Army for a period of 4 years on 12 October 1978.  He completed basic combat and advanced individual training under the one station unit training (OSUT) program at Fort Dix, NJ, and was awarded military occupational specialty (MOS) 63B (Power Generator and Wheel Vehicle Mechanic).  The highest rank/grade he attained during his military service was private (PVT)/E-1.  He was assigned to the 2nd Battalion, 1st Field Artillery, Fort Sill, OK. 

3.  The applicant’s records show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  His records do not reveal any special recognition or acts of distinction. 

4.  On 15 October 1979, the applicant’s immediate commander advised the applicant that he intended to recommend that the applicant be discharged under the provisions of paragraph 5-31 (Expeditious Discharge Program, or EDP), Army Regulation 635-200 (Personnel Separations), by reason of lack of ability to adapt socially and emotionally to the accepted standards required of enlisted Soldiers.

5.  On an unknown date in October 1979, the applicant acknowledged notification of the proposed separate action and consulted with legal counsel.  He was advised of the basis for the contemplated separation action under the provisions of paragraph 5-31, Army Regulation 635-200, the effect on future enlistment in the Army, the possible effects of a general discharge and of the procedures and rights that were available to him.  He voluntarily consented to this separation action and declined to make a statement in his own behalf.  The applicant further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life. 

6.  On an unknown date in October 1979, the applicant’s immediate commander initiated separation action against the applicant under EDP.  The immediate commander stated that the applicant’s conduct was average and his efficiency was below average.  He further stated that separation action was recommended because the applicant demonstrated he would not meet acceptable standards required of Army enlisted personnel, he lacked motivation and self-discipline. 

7.  On 23 October 1979, the separation authority approved the applicant's discharge and directed that he receive a General Discharge Certificate.  On 26 October 1979, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 1 year and 15 days of creditable active military service.  Item 28 (Narrative Reason for Separation) shows the entry, “Expeditious Discharge Program-Failure to Maintain Acceptable Standards for Retention.”
8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel.  The pertinent paragraph in Chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the Expeditious Discharge Program.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

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 that his discharge should be upgraded was carefully considered and found to lack merit.  

2.  The available evidence shows the applicant voluntarily consented to discharge under the Expeditious Discharge Program.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  The applicant's record of service shows that he displayed an inability to adjust to the regimentation of military life as reflected by his failure to adjust to the military environment and/or respond to counseling.  Based on the applicant’s overall record, his service does not meet the standards of acceptable conduct and performance for Army personnel.  Therefore, the applicant 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.




      _______ _   _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)                                         AR20090003123



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ABCMR Record of Proceedings (cont)                                         AR20090003123



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