BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090005938 


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 under honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that at the time of his discharge he was not able to adapt to military service due to his depression and that he is now 
100-percent disabled due to his depression.

3.  The applicant did not provide any supporting documentation or evidence with 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 was born on 8 September 1955.  He enlisted in the Regular Army on 24 October 1973.  He successfully completed basic and advanced individual training.  He was awarded military occupational specialty 76Y (Armor Unit Supply Specialist).

3.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions for failure to go to his appointed place of duty, for being absent without authority, and for being absent without leave from on or about 11 November 1974 to on or about 25 November 1974.

4.  On 13 August 1975, a psychiatrist at the Mental Hygiene Clinic at Fort Campbell, KY, examined the applicant and stated that the applicant was able to distinguish the difference between right and wrong and could adhere to the right, and that he had the mental capacity to understand and participate in any actions taken in his case.  The applicant did not manifest signs or symptoms meeting requirements for a medical evaluation board on psychiatric grounds nor did the applicant manifest signs and symptoms meeting requirements for hospitalization on psychiatric grounds.  The psychiatrist stated the applicant should be separated from the military in accordance with Army Regulation 
635-200 under the Expeditious Discharge Program.  The psychiatrist noted that the applicant had adjustment reaction to young adult life manifested by difficulty coping with and adjusting to military life.

5.  On 4 September 1975, the commander initiated separation action to discharge the applicant under the provisions of the Expeditious Discharge Program and recommended the applicant be furnished a general discharge.

6.  On or about 4 September 1975, the applicant acknowledged notification of the action and voluntarily consented to the discharge.  He waived the opportunity to submit a statement on his behalf.  He acknowledged that he understood that if he was furnished a general discharge under honorable conditions he could expect to encounter substantial prejudice in civilian life and he acknowledged that he was provided the opportunity to consult with a judge advocate.

7.  On 8 September 1975, the applicant’s commander formally recommended the applicant be discharged with a general discharge under the Expeditious Discharge Program.  He stated the applicant had received two Article 15s, had no courts-martial, and had been formally counseled on two separate occasions.  The reason he cited for his recommendation was the applicant's substandard job performance and that he possessed little motivation and desire for continued service in the Army.  He further stated that the applicant's behavior pattern was disruptive to other personnel to such an extent that it interfered with the normal daily operations of the section.

8.  On 16 September 1975, the appropriate authority approved the recommendation and directed the applicant be given a general discharge.

9.  On 24 September 1975, the applicant was discharged with a general discharge in pay grade E-2 under the provisions of Army Regulation 635-200, paragraph 5-37.  He had completed 1 year, 10 months, and 17 days of creditable active service and had 14 days of lost time.

10.  There is no evidence in the available records that shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

11.  Army Regulation 635-200 (Enlisted Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 at the time provided that members who completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who demonstrated that they could not or would not meet acceptable standards required of Soldiers 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.  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 voluntarily consented to the proposed discharge.  Members separated under the Expeditious Discharge Program could be awarded a characterization of service of honorable or under honorable conditions as appropriate.

12.  Army Regulation 635-200, paragraph 1-13, at that time stated an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the Soldier's current enlistment with due consideration for the member’s age, length of service, grade, and general aptitude.  When a Soldier served faithfully and performed to the best of his ability and there was no derogatory information in his military record, he should be furnished an honorable discharge certificate.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-37, under the Expeditious Discharge Program for failure to maintain acceptable military standards for retention.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  The applicant's record of service that included three nonjudicial punishments and two adverse counseling statements shows that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  It is also noted that the psychiatrist recommended the applicant be discharged under the Expeditious Discharge Program due to the applicant's adjustment reaction to young adult life manifested by difficulty coping with and adjusting to military life.  The medical evaluation did not show that the applicant suffered from depression as he stated in his application.

4.  The type of discharge directed and the reasons were appropriate considering all of the facts of the case.  Therefore, the applicant is not entitled to relief.

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)                                         AR20090005938



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ABCMR Record of Proceedings (cont)                                         AR20090005938



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