IN THE CASE OF:	  

		BOARD DATE:	       5 November 2009

		DOCKET NUMBER:  AR20090009607 


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 an honorable discharge.

2.  The applicant states that he believes it would be better if his records reflected an honorable discharge.

3.  The applicant provides no additional documents 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.  The applicant enlisted in the Regular Army in Seattle, Washington, on 11 June 1980 for a period of 3 years, training as an armor crewman, and assignment to the 2d Squadron, 6th Armored Cavalry Regiment, at Fort Knox, Kentucky.

3.  He completed his one-station unit training at Fort Knox and was assigned to Troop G, 2d Squadron, 6th Cavalry Regiment, at Fort Knox for duty as a tank driver.

4.  On 21 September 1981, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty.

5.  On 11 December 1981, NJP was again imposed against him for failure to go to his place of duty.

6.  On 10 June 1982, the applicant's commander notified him that he was initiating action to bar him from reenlistment.  He cited as the basis for his recommendation the applicant's disciplinary record, his repeated incidents of writing bad checks, and his failure to respond to repeated counseling sessions regarding his failure to go to his place of duty.  The applicant elected not to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment.

7.  On 30 June 1982, the applicant's commander notified him that he was initiating action to release him from active duty (REFRAD) under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-1, and the Expeditious Discharge Program.  He cited as the basis for his recommendation, that despite repeated counseling, the applicant had continued to write bad checks and had many instances of failure to repair.  He went on to state that the applicant had continued to demonstrate apathy and inaptitude and that his performance was marginal at best.

8.  After consulting with counsel, the applicant elected not to submit matters in his own behalf.

9.  On 4 August 1982, the appropriate authority approved the recommendation to release the applicant from active duty with a general discharge and directed that he be transferred to the U.S. Army Reserve (USAR).

10.  Accordingly, he was REFRAD under honorable conditions on 9 August 1982 under the provisions of Army Regulation 635-200, paragraph 5-31h(1), and the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  He had served 2 years, 1 month, and 29 days of total active service and was transferred to the USAR to complete his statutory service obligation.

11.  On 10 June 1986, he was discharged under honorable conditions from the USAR.

12.  On 18 June 1996, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that he began to develop symptoms of mental illness in 1992.  After considering the available evidence and arguments of the applicant, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request on 19 June 1997.

13.  The Department of the Army began testing the Expeditious Discharge Program in October 1973.  In a message, dated 8 November 1974, the Deputy Chief of Staff for Personnel announced the expansion of the Expeditious Discharge Program.  The program provided for the separation of Soldiers whose acceptability, performance of duty, and/or potential for continued effective service fall below the standards required for retention in the Army.  Soldiers may be separated under this program when subjective evaluation of their commanders identifies them as lacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  An honorable or general discharge was required and there has never been any provision for an automatic upgrade of a discharge less than fully honorable.

14.  Paragraph 3-7a of Army Regulation 635-200 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.  

15.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  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.
2.  The applicant’s administrative separation was accomplished in accordance with applicable regulations with no violations of the applicant’s rights.

3.  Accordingly, his separation and the reasons were therefore appropriate under the circumstances and he has provided no evidence to justify an upgrade of his 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)                                         AR20090009607



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ABCMR Record of Proceedings (cont)                                         AR20090009607



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