IN THE CASE OF:	

		BOARD DATE:	17 September 2009    

		DOCKET NUMBER:  AR20090005601 


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 1976 general discharge under honorable conditions be upgraded to fully honorable.

2.  The applicant states he was told he could request an honorable discharge after 1 year and now notes it has been more than 32 years.  He states he was originally given an early out under Title 5 due to a reduction in force that was offered to him and his entire unit.  He states he would just like to have the record straight and be issued an honorable discharge as he was promised more than three decades ago.

3.  The applicant provides no additional evidence in support of his request.

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.  Records available to the Board indicate the applicant enlisted and entered active duty on 13 December 1974.  In April 1975, following completion of training he was assigned to an engineer battalion at Fort Campbell, Kentucky.

3.  On 11 August 1975 the applicant was reported as absent without leave (AWOL).  He returned to military control on 20 August 1975 and was subsequently punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for his period of AWOL.  

4.  On 24 September 1975 the applicant was again reported as AWOL after failing to return from a period of authorized leave.  He returned to military control on 11 October 1975 and on 6 November 1975 he was convicted by a special court-martial for the charge of AWOL.  His sentence included 30 days of hard labor without confinement, a forfeiture of $150.00 for 2 months, and reduction to pay grade E-1.

5.  On 9 February 1976 the applicant was notified by his unit commander of his (the commander’s) intent to initiate action to discharge the applicant under the provisions of Army Regulation (AR) 635-200, paragraph 5-37 (Expeditious Discharge Program).  The commander noted the applicant’s inability to cope with his family situation and periods of AWOL as the basis for the recommendation.  The unit commander informed the applicant he was recommending issuance of a general discharge.  

6.  The applicant acknowledged the proposed separation action, waived his rights, and voluntarily consented to the discharge.  The applicant acknowledged that if he were furnished a general discharge he could expect to encounter substantial prejudice in civilian life.  There was no mention of being eligible for an honorable discharge after 1 year.

7.  On 13 February 1976 the appropriate separation authority approved the separation action and directed the applicant be issued a general discharge certificate.

8.  On 24 February 1976 the applicant was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 5-37.  He had completed 1 year, 1 month, and 17 days of creditable service.  He also had 26 days of lost time due to being AWOL.

9.  AR 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Paragraph 5-37, then in effect, provided for the Expeditious Discharge Program.  This program provided for the discharge of individuals who had completed at least 6 months, but less than 36 months of active duty and who demonstrated by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential that they could not or would not meet acceptable standards.  Such personnel were issued a general or honorable discharge, as appropriate.

10.  AR 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.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant’s contention, he was not given an early out due to a reduction in force.  Rather, he was administratively discharged under the Expeditious Discharge Program as a result of his inability to meet acceptable standards of military conduct as evidenced by his periods of AWOL.  As such, his service was appropriately characterized as under honorable conditions.  There is also no evidence he was ever told that his discharge would be upgraded to fully honorable after 1 year.

2.  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.

3.  In view of the foregoing, 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)                                         AR20090005601



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ABCMR Record of Proceedings (cont)                                         AR20090005601



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