BOARD DATE:	  March 2, 2010

		DOCKET NUMBER:  AR20090010412 


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

2.  The applicant makes no statement to support his application.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) 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 he enlisted in the Regular Army (RA) on
25 November 1974.  His record shows that he was trained in and awarded 
military occupational specialty (MOS) 76Y (Unit Supply Specialist/Armorer).
3.  The applicant's DA Form 2-1 (Enlisted Qualification Record) shows in Item 9 (Awards, Decorations & Campaigns) that he earned the Expert Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant's records document no acts of valor or significant achievement.

5.  The applicant's record shows that he accepted non-judicial punishment (NJP) on three separate occasions:

	a.  on 23 January 1976, for being absent from his unit on 6 January 1976 and 13 January 1976;

	b.  on 7 May 1976, for failing to go at the time prescribed to his appointed place of duty on 4 May 1976; and

	c. on 1 July 1976, for being absent from his unit from 17 June 1976 to 23 June 1976.

6.  On 1 July 1976, the applicant was counseled on his poor attitude and lack of self-discipline related to his duty performance.

7.  On 23 July 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 Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 5 (Expeditious Discharge Program (EDP)), because of his substandard and non-productive performance, numerous violations of the UCMJ, and his failure to respond to numerous adverse counseling sessions.  The immediate commander also informed the applicant that he intended to recommend that he receive a General Discharge Certificate and advised him of his rights to consult with legal counsel to discuss the ramifications of this recommendation and to submit a statement in his own behalf, to decline the discharge, or to waive any of the aforementioned rights.

8.  On 23 July 1976, the applicant acknowledged receipt of the notification.  He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army under the provisions of Army Regulation 635-200, chapter 5, 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 in his own behalf.

9.  On 23 July 1976, the applicant's immediate commander recommended that he be discharged in accordance with Army Regulation 635-200, chapter 5, under the EDP and that he be issued a General Discharge Certificate.

10.  On 26 July 1976, the separation authority approved the applicant's discharge and directed that he be furnished a General Discharge Certificate.  On 2 August 1976, the applicant was discharged accordingly.

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

12.  Army Regulation 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 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 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his general, under honorable conditions discharge should be upgraded to an honorable discharge was carefully considered.
2.  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.

3.  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 discipline and several instances of NJP.  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.

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)                                         AR20090010412



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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