IN THE CASE OF:	

		BOARD DATE:	11 June 2009  

		DOCKET NUMBER:  AR20090004263 


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, an upgrade of his general discharge to a fully honorable discharge.

2.  The applicant states that it has been over 10 years since his discharge and that he has been a hard working individual and deserves an upgrade. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 2 November 1981, 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 3 years on 13 June 1980.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11H (Anti-armor Crewmember).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records also show he served in Germany from on or about 19 September 1980 to 29 October 1981.  His awards and decorations include the Overseas Service Ribbon, the Army Service Ribbon, and 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 September 1981, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his multiple instances of failure to pay debt, letters of indebtedness, and bounced checks. 

5.  The applicant’s records reveal multiple instances of counseling by his chain of command regarding his lack of self-discipline, immaturity as exemplified by his inability to manage his financial responsibilities, a poor attitude, substandard appearance; and failure to respond to counseling. 

6.  The applicant’s records reveal he entered into a budget counseling program in November 1980 that was marred with missed appointments.  The budget counselor indicated that he was given every opportunity to make a success of the program but showed no willingness to make any effort to help himself.  

7.  On 19 October 1981, the applicant’s immediate commander advised the applicant that he intended to recommend his discharge from the Army under the provisions of paragraph 5-31 (Expeditious Discharge Program, or EDP) of Army Regulation 635-200 (Personnel Separations) by reason of lack of self-discipline or the maturity to adjust successfully to a military environment.  

8.  On 21 October 1981, the applicant acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and was advised of the basis for the contemplated separation action under the provisions of paragraph 5-31 of 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.  The applicant voluntarily consented to this separation and declined making a statement.  He further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life. 

9.  On 21 October 1981, the applicant’s immediate commander initiated separation action against the applicant under the EDP.  He further stated that the applicant had shown no desire to help or improve himself.  He failed to respond to even professional help and it was felt at the time that there was no suitable course of action other than to discharge him.

10.  On 22 October 1981, the separation authority approved the applicant's discharge and directed that he receive a General Discharge Certificate.  On 2 November 1981, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 1 year, 4 months, and        20 days of creditable active military service.  Item 28 (Narrative Reason for Separations) of his DD Form 214 shows the entry, "Expeditious Discharge Program-Failure to Maintain Acceptable Standards for Retention."

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

12.  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.

13.  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 because it has been over 10 years since he was discharged was carefully considered; however, it was found to be without merit.  The Army does not have a policy to upgrade a discharge due to the passage of time.  Each case is decided on its own merits.  Changes may be warranted if it is determined that the characterization of service or the reason(s) for discharge, or both, were improper or inequitable.  The applicant has failed to provide evidence or a convincing argument for either.

2.  The evidence of record shows the applicant voluntarily consented to discharge under the EDP.  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 discharge were appropriate considering all the facts of the case.

3.  The applicant's record of service shows he displayed an inability to adjust to to the military environment and/or respond to counseling.  Based on his overall service record the applicant's service does not meet the standards of acceptable conduct 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.



      _______ _   _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)                                         AR20090004263



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ABCMR Record of Proceedings (cont)                                         AR20090004263



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