IN THE CASE OF:	

		BOARD DATE:	10 September 2009  

		DOCKET NUMBER:  AR20090007152 


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 honorable.

2.  The applicant states that he would like his discharge upgraded because he was told by the company commander and others that his discharge would be changed to honorable 6 months after his discharge.

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.  Records show the applicant enlisted in the Regular Army 3 April 1980.  He successfully completed basic and advanced individual training.  He was awarded military occupational specialty 11C (Indirect Fire Infantryman).

3.  The applicant was assigned to Company C, 3rd Battalion, 39th Infantry Regiment, at Fort Lewis, WA, on 14 July 1980.

4.  The applicant's service records show that the applicant was formally counseled in writing on two separate occasions for lack of respect toward his chain of command and failure to be at his appointed place of duty.  He was advised in his counseling statements that his conduct was punishable under the Uniform Code of Military Justice (UCMJ).

5.  On 12 January 1981, the unit commander initiated separation action to discharge the applicant under the provisions of the Expeditious Discharge Program because in his judgment the applicant would not participate satisfactorily in future military training.

6.  On 12 January 1981, the applicant acknowledged notification of the separation action and voluntarily consented to the discharge.  He waived the opportunity to submit a statement in 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 General's Corps officer.

7.  On 12 January 1981, the applicant’s unit commander formally recommended the applicant be discharged with a general discharge under the Expeditious Discharge Program.  The unit commander's reason for recommending separation was that the applicant lacked the necessary personal motivation and self-discipline expected of a Soldier.  He further stated the applicant had a poor attitude toward military service and he exhibited no promotional potential in the U.S. Army.

8.  On 12 January 1981, the appropriate authority approved the applicant's separation and directed the applicant be given a general discharge.

9.  On 22 January 1981, the applicant was discharged with a general discharge in pay grade E-2 under the provisions of Army Regulation 635-200, paragraph 
5-31.  He had completed 9 months and 20 days of creditable active service with no lost time annotated on his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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, in effect at the 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.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, 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 shows that his conduct was not conducive to the good order and discipline of a military unit.  He was formally counseled and told that his infractions were punishable under the provisions of the UCMJ.

4.  The Army does not now nor has it ever had a provision for automatic discharge upgrade after a specified period of time.

5.  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)                                         AR20090007152





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ABCMR Record of Proceedings (cont)                                         AR20090007152



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