IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090008182 


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 an honorable discharge.  He further requests clarification of the codes that appear on his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states, in effect, that he was never subjected to disciplinary action.  The applicant continues that he was told that he would be issued an “honorable under honorable conditions” because of the inappropriate relationship that his recruiter had with his wife while he was gone.  He also states that he believes he should have received a medical discharge, that the codes on his DD Form 214 are bad and that no one will hire him because the codes indicate he has a mental disorder.

3.  The applicant provides the address of the Regional Office of the Department of Veterans Affairs (VA) located in Jackson, Mississippi, and an illegible series of numbers that appear to be a VA Case number.  He provides no documentary evidence in support of this 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 he enlisted in the Regular Army (RA) and entered active duty on 14 August 1975.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  The highest rank and grade the applicant attained during his military service was private (PV2)/pay grade E-2.

3.  On 15 March 1976, the applicant’s immediate commander notified the applicant of his intent to initiate action to discharge him from the Army under the provisions of chapter 5 of Army Regulation (AR) 635-200 (Personnel Separations), Expeditious Discharge Program (EDP), by reason of poor attitude, a lack of motivation, inability to adapt emotionally, and due to his hostility towards the Army.  The immediate commander also informed the applicant that he intended to recommend that he receive a General Discharge Certificate and instructed him to consult with legal counsel to discuss the ramifications of this recommendation.

4.  On 15 March 1976, the applicant acknowledged receipt of the notification memorandum.  He consulted with legal counsel and was advised of the basis for the contemplated separation from the Army under the provisions of chapter 5 of AR 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 action.  He acknowledged he understood that if he were issued a General Discharge Certificate he could expect to encounter substantial prejudice in civilian life.  He further declined to submit a statement on his own behalf.

5.  On 16 March 1976, the applicant’s immediate commander recommended that he be discharged in accordance with chapter 5 of AR 635-200, under the EDP and that he be issued a General Discharge Certificate.

6.  On 16 March 1976, the separation authority approved the applicant's discharge and directed that he be furnished a General Discharge Certificate.  

7.  Headquarters, III Corps and Fort Hood, Fort Hood, Texas, Special Orders Number 71, dated 7 April 1976, discharged the applicant effective 9 April 1976.  These orders also show the applicant was to be furnished a general discharge under honorable conditions.
8.  A Headquarters, III Corps and Fort Hood, letter, dated 9 April 1976, Subject:  Reason and Authority for Separation shows an Assistant Adjutant provided the applicant information pertaining to his separation action per his request.  The information provided was as follows:

	a.  Date of Separation:  9 April 1976;

	b.  Reason for Separation:  Failure to maintain acceptable standards for retention (EDP);

	c.  Authority for Separation:  Paragraph 5-37, AR 635-200; and

	d.  Reentry (RE) Code:  3.

9.  On 9 April 1976, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed a total of 7 months and 26 days of creditable active military service and he was in an excess leave status for 
29 days.  The applicant's DD Form 214 also shows that based on the authority and reason for his discharge, he was assigned a Separation Program Designator (SPD) code of KMN and an RE code of 3.

10.  There is no evidence in the available record and the applicant did not provide any substantiating evidence that shows his recruiter had an inappropriate relationship with his spouse or that he was promised or notified that his discharge would be honorable.

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

12.  AR 635-200, in effect at the time, set forth 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 per-sonnel 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 EDP.  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.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  AR 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It stated, in pertinent part, that the SPD code KMN was the appropriate code to assign to Soldiers separated under the provisions of paragraph 5-37 of Army Regulation 635-200 under the provisions of the EDP.

15.  AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States Army Reserve (USAR).  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable and the individual is eligible for reentry if a waiver is granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge under honorable conditions should be upgraded to an honorable discharge.  He further contends that the codes that appear on his DD Form 214 are erroneous.

2.  There is no evidence in the available record and the applicant did not provide any substantiating evidence that shows he was promised or notified that his discharge would be honorable.  He has also failed to provide any evidence to show that he had a medical condition that would have required processing through medical channels at the time of discharge.

3.  The evidence of record shows the applicant voluntarily consented to be discharged under the EDP.  His discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Considering all the facts of the case, the type of discharge directed and the reason for separation were appropriate.

4.  Evidence shows the applicant was assigned the appropriate SPD and RE codes at the time of his discharge.  Therefore, he is not entitled to any different codes.

5.  The applicant's record of service shows he displayed an inability to adjust to the regimentation of military life as reflected by his lack of response to counseling regarding his poor attitude, lack of motivation, inability to adapt emotionally, and hostility towards the Army.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct or performance of duty for Army personnel.  Therefore, the applicant 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)                                         AR20090008182



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ABCMR Record of Proceedings (cont)                                         AR20090008182



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