IN THE CASE OF:	  

		BOARD DATE:	  12 November 2009

		DOCKET NUMBER:  AR20090009420 


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.  He also requests, in effect, that he be paid his last month of pay and separation pay.

2.  The applicant states, in effect, that he was forced out of the Army by his sergeant, that his sergeant was prejudiced against him, and that he was harassed by this sergeant.  He points out that he never received his last month’s pay of $550 as an E-3 or separation pay.  He also states that he was told he could upgrade his discharge 7 years after he was separated.

3.  The applicant provides no 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 enlisted in the Regular Army on 14 August 1981 for a period of 4 years.  He successfully completed One Station Unit Training in military occupational specialty 11C (indirect fire infantryman).  

3.  Between 21 December 1981 and 23 March 1982, the applicant was counseled on numerous occasions for various infractions which included insubordination, drunkenness, breaking profile, substandard appearance, drinking on duty, being absent from his appointed place of duty, wearing a pile cap to formation, belligerent behavior, and being disrespectful to a commissioned officer. 

4.  On 13 April 1982, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, paragraph 5-31, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  The unit commander recommended separation with a general discharge and cited the applicant's demonstrated inability to adapt socially or emotionally to military life. 

5.  On 13 April 1982, the applicant acknowledged notification of his proposed discharge, voluntarily consented to discharge from the Army, and elected not to make a statement on his behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if issued a general discharge and that he had been provided an opportunity to consult with counsel.

6.  On 14 April 1982, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

7.  Accordingly, the applicant was discharged on 22 April 1982 with a general discharge under the provisions of Army Regulation 635-200, paragraph 5-31, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  He had served a total of 8 months and 9 days of total active service.  

8.  There is no evidence of record which shows the applicant was not paid his last month of pay. 

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

10.  Army Regulation 635-200, in effect at the time, set for 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 personnel 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/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.

11.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 

12.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

13.  Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 
31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

14.  The Department of the Army Financial Management Regulation, Volume 7A states, in pertinent part, that beginning on 20 June 1991, separation pay was authorized to certain enlisted members who had the prescribed qualifying service as of 5 November 1990.  


DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record which shows the applicant was a victim of discrimination. 

2.  A discharge upgrade is not automatic.

3.  Although the applicant contends that he was forced out of the Army by his sergeant, his separation under the Expeditious Discharge Program was voluntary and the evidence shows he voluntarily consented to the discharge.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if issued a general discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

6.  The applicant's brief record of service included numerous counseling statements for various infractions.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.
  
7.  The applicant's contention that he never received his last month of pay was noted.  However, there is no evidence of record which shows he was not paid for his last month of service.  Therefore, there is an insufficient basis for granting the applicant's request for this pay.   

8.  Since the applicant was separated from active duty before separation pay was authorized for active duty enlisted members, there is no basis for granting the applicant's request for separation pay.   








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)                                         AR20090009420



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ABCMR Record of Proceedings (cont)                                         AR20090009420



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