IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090009337 


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 an upgrade of his under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, he believes he was too young to conform to military life when he enlisted in the Army, he was not ready for adult life, and he acknowledges that his actions were wrong at the time.

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 entered active duty in the Regular Army on 6 June 1977 for a period of 3 years.  Records show the applicant was 17 years of age at the time of his enlistment.  The applicant completed basic combat and advanced individual training, he was awarded military occupational specialty 63B (Power Generator and Wheel Vehicle Mechanic), and he advanced to pay grade E-2.

3.  On 18 October 1977, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 7 October 1977.  His punishment consisted of a forfeiture of $50.00 for one month ($25.00 suspended for 60 days), 14 days restriction (7 days suspended for 30 days), and 14 days of extra duty (7 days suspended for 30 days).  On 25 October 1977, the suspensions of the punishments imposed against the applicant were vacated and the unexecuted portion of the punishments was ordered duly executed.

4.  On 4 November 1977, the applicant received NJP under Article 15, UCMJ, for wrongfully possessing marijuana.  His punishment consisted of a forfeiture of $92.00 ($42.00 suspended for 60 days), 7 days of restriction and extra duty.  

5.  On 17 February 1978, the applicant received NJP under Article 15, UCMJ, for being absent without leave (AWOL) from 3 February to 17 February 1978.  His punishment consisted of a forfeiture of $103.00 for 1 month.

6.  On 2 June 1978, the applicant received NJP under Article 15, UCMJ, for being absent from his unit from 0830 hours until 1700 hours on 16 May 1978; breaking restriction on 19 May 1978; and failing to go at the time prescribed to his appointed place of duty on 1 June 1978.  His punishment consisted of a forfeiture of $100.00 per month for 2 months and 30 days in correctional custody.

7.  On 16 November 1978, the applicant received NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on
4 November 1978.  His punishment consisted of reduction to private/E-1 (suspended for 60 days), a forfeiture of $100.00 (suspended for 60 days), 
14 days of restriction and extra duty.

8.  On 6 June 1979, the applicant received NJP under Article 15, UCMJ, for being AWOL from 8 May to 15 May 1979.  His punishment consisted of reduction to private/E-1, a forfeiture of $95.00, and 7 days in correctional custody.

9.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in Item 21 (Time Lost (Section 972, Title 10, U.S. Code)) he was AWOL for 14 days from 3 February through 16 February 1978; AWOL for 7 days from 8 May through 
14 May 1979, and AWOL for 32 days from 6 July through 6 August 1979.
10.   On 7 August 1979, the company commander notified the applicant of his intent to initiate separation action to effect his discharge under the Expeditious Discharge Program (EDP) based on his inability to adapt to military regiment and way of life despite counseling and NJP; failure to demonstrate promotion potential; disrespect for authority; poor standards of job proficiency, bearing, and appearance; and the detrimental effect these factors have upon his platoon's morale and efficiency.  The applicant was advised that the final decision as to whether he would be discharged and, if so, the type of discharge he would be issued rested with the discharge authority.  The applicant was also advised of his rights.

11.  On 7 August 1979, the applicant acknowledged with his signature that he had been notified of the basis for the contemplated separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31 (EDP), and voluntarily consented to the discharge.  The applicant acknowledged that he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps and that he elected not to submit statements in his own behalf.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further acknowledged that he understood that he could, prior to the date the discharge authority approving his discharge, withdraw his voluntary consent to the discharge.  The applicant also acknowledged he would be ineligible to apply for enlistment in the U.S. Army for a minimum period of 2 years after discharge.

12.  On 9 August 1979, the lieutenant colonel serving as the Special Court-Martial Convening Authority, and the authorized separation authority in the applicant's case, approved the recommendation for separation under the provisions of Army Regulation 635-200, paragraph 5-31, and directed the applicant be furnished a General Discharge Certificate.

13.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 14 August 1979 in accordance with the provisions of Army Regulation 635-200, paragraph 5-31 (EDP), for failure to maintain acceptable standards for retention, and his service was characterized as under honorable conditions.  At the time he had completed 2 years and 11 days of net active service.  Item 18 (Remarks), in pertinent part, shows he had 58 days of time lost.

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


15.  Army Regulation 635-200, in effect at the time of the applicant's separation processing, set forth the basic authority for separation of enlisted personnel.  chapter 5 (Separation for Convenience of the Government), paragraph 5-31, 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 because of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and/or failure to demonstrate promotion potential.  Members separated under the EDP could be awarded a character of service of honorable or under honorable conditions, as appropriate.

16.  Army Regulation 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.  The applicant contends that his under honorable conditions discharge should be upgraded to an honorable discharge because he was too young to conform to military life when he enlisted in the Army and he is sorry for his actions.
   
2.  Considering that the applicant had demonstrated the capacity for honorable service by the completion of training and more than 3 months of service, and that he was advanced to pay grade E-2, his contention that he was young and immature is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Thus, the applicant's contention is not sufficiently mitigating to warrant relief.  

3.  Records confirm the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-31, under the EDP for failure to maintain acceptable standards for retention, was administratively correct and in compliance with applicable regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, records show the applicant was properly and equitably separated from active duty.  Therefore, considering all the facts of this case, the type of discharge and character of service were appropriate. 

4.  The applicant's military records show he received NJP on six occasions that included failing to go at the time prescribed to his appointed place of duty (three occasions), possessing marijuana, breaking restriction, and being AWOL (three occasions), and he had a total of 58 days of time lost during the period of service under review.  Thus, the applicant's record of service clearly shows that his overall quality of service was not sufficiently meritorious to warrant an honorable discharge.  Therefore, the applicant is not entitled to an honorable discharge.

5.  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.  Therefore, in view of all 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)                                         AR20090009337



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009337



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1