IN THE CASE OF:	  

		BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20090004070 


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 that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant does not provide a justification for his request.

3.  The applicant provides no additional documentary evidence 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 enlisted in the Regular Army on 8 January 1975 and upon completion of initial entry training was awarded military occupational specialty 11B (Infantryman).
3.  On 15 October 1975, the applicant accepted punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using reproachful language towards a noncommissioned officer on 7 October 1975.

4.  On 23 January 1976, the applicant was notified by his commander that he was initiating action to discharge him from the Army under the Expeditious Discharge Program (EDP).  He cited as the reasons for the proposed action the applicant's distasteful apathy and his general waning, antagonistic, and foul attitude towards his duties, the authority of his superiors, and the U.S. Army as an institution, his repeated insubordinate and disrespectful manner of communicating toward his superiors, and his desire to produce and maintain only the absolute minimum in standards of conduct and efficiency required by the service.

5.  The applicant authenticated a statement with his signature in which he acknowledged notification and voluntarily accepted discharge from the U.S. Army.  The applicant acknowledged he understood the ramifications of receiving a general discharge under honorable conditions and that he had been provided the opportunity to consult with legal counsel.  He declined to submit a statement in his own behalf.

6.  The appropriate authority approved the request for discharge on 3 February 1976.  On 4 March 1976, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-37, and the EDP.  He completed 1 year, 1 month, and 27 days of total active service.  His service was characterized as general under honorable conditions.

7.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8. The Department of the Army began testing the EDP in October 1973.  In a message dated 8 November 1974, the Deputy Chief of Staff for Personnel announced the expansion of the EDP.  The program provided for the separation of Soldiers whose acceptability, performance of duty, and/or potential for continued effective service fell below the standards required for retention in the Army.  Soldiers could be separated under this program when subjective evaluation by their commanders identified them as lacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failing to demonstrate promotion potential.  Soldiers had to consent to separation under this program in order for commanders to separate them under the provisions of the EDP.  Otherwise, a commander was required to separate Soldiers under other provisions of the regulation, which in most cases resulted in an other than honorable discharge.
9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 was separated in accordance with regulations governing those individuals who failed to demonstrate adequate potential for continued military service.

2.  The applicant was notified of the reason for his recommended separation and he was provided an opportunity to consult with legal counsel.  He authenticated a statement with his signature acknowledging he understood the prejudices associated with a general discharge and voluntarily consented to the separation.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations then in effect with no indication of procedural errors which would have jeopardized his rights.

4.  In order to justify correction of 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.  As a result, there is no basis for granting the applicant's request.

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)                                         AR20090004070



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ABCMR Record of Proceedings (cont)                                         AR20090004070



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