IN THE CASE OF:	

		BOARD DATE:	22 September 2009   

		DOCKET NUMBER:  AR20090008115 


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, that his general discharge (GD), under honorable conditions discharge be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, he served for 1 year and 10 months, of which 
1 year and 5 months were served overseas.  He also states that he has matured and he is no longer a 20 year old Soldier.  

3.  The applicant provides no additional documentary evidence 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 record shows that he enlisted in the Regular Army and entered active duty on 15 August 1975.  He successfully completed basic training at Fort Jackson, South Carolina, and advanced individual training (AIT) at Fort Knox, Kentucky.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 11E (Armor Crewman) and he was assigned to Panama.  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was advanced to private first class/E-3 (PFC/E-3) on 1 May 1975, and that this is the highest rank he attained while serving on active duty.  It further shows he was reduced to private/E-2 (PV2/E-2) for cause on 12 April 1977.  His record documents no acts of valor or significant achievement.  

4.  The applicant's record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions. 

5.  On 29 October 1976, the applicant accepted NJP for failing to go to his appointed place of duty at the time prescribed.  His punishment for this offense was a reduction to PV2/E-2 (suspended for 90 days) and 14 days of extra duty.

6.  On 28 January 1977, the applicant accepted NJP for failing to go to his appointed place of duty at the prescribed time 29 October 1976, for two specifications of failing to go to his appointed place of duty at the time prescribed time and for missing movement with his unit.  His punishment for these offenses was a forfeiture of $75.00 pay for 2 months and 30 days of extra duty.  

7.  On 12 April 1977, the applicant accepted NJP for dishonorably failing to pay a just debt.  His punishment for this offense was a reduction to PV2/E-2, a forfeiture of $95.00, and 14 days of extra duty and restriction. 

8.  On 23 May 1977, the unit commander notified the applicant of his intent to initiate action to separate him under the provisions of chapter 5, Army Regulation 635-200 (Expeditious Discharge Program (EDP)), with a GD.  The unit commander cited the applicant’s poor attitude, lack of motivation, lack of self-discipline, failure to demonstrate promotion potential, inability to accept instructions, and clear substandard performance as the bases for initiating the action.  The commander also noted the applicant's NJP record.  

9.  On 24 May 1977, the applicant consulted with legal counsel and acknowledged receipt of the separation notification.  After being advised of the basis for the contemplated separation action and its effects and of the rights available to him by legal counsel, the applicant voluntarily consented to this discharge and elected to submit a statement in his own behalf.  The applicant indicated in his statement that he believed he should be honorably discharged.  He indicated that his performance in the motor pool had not been fully considered by his commander and he believed he should receive an HD.  He outlined objections to the way he had been treated by members of the chain of command and he stated that a GD was not supported by his record.  

10.  On 7 June 1977, the separation authority approved the applicant’s separation under the provisions of the EDP, and directed the applicant receive a GD.  On 24 June 1977, the applicant was discharged accordingly.  

11.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant upon discharge on 24 June 1977, shows he was separated under the provisions of paragraph 5-37, Army Regulation 635-200 (EDP), after completing 1 year, 10 months, and 4 days of creditable active military service and accruing
7 days of time lost due to being in confinement.  

12.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, paragraph 5-37, then in effect, provided the policy and outlined the procedures for separating individuals under the EDP.  The EDP provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.  An HD or GD could be issued under this program.  

14.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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 contentions that his discharge should be upgraded due to his overseas service and because he has matured has been carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.  

2.  The evidence of record confirms the applicant was properly notified by his unit commander that the commander was initiating action to separate him under the provisions of the EDP with a GD based on the applicant’s substandard performance and record of misconduct.  The applicant was also advised of the consequences of such a discharge, prior to voluntarily consenting to the discharge.  These actions were accomplished in accordance with the applicable regulation.  All requirements of law and regulation met, and the applicant’s rights were fully protected throughout the separation process.  

3.  The applicant's record reveals a disciplinary history that clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, absent any evidence of error or injustice, there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.  

4.  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.

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)                                         AR20090008115



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ABCMR Record of Proceedings (cont)                                         AR20090008115



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