IN THE CASE OF:	  

		BOARD DATE: 	       10 November 2009

		DOCKET NUMBER:  AR20090010569 


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 upgrade of his general, under honorable conditions discharge to a fully honorable discharge.

2.  The applicant states he believes he was incorrectly given an Article 15 which led to his being discharged.  He states he was late one time and was given an Article 15 and maintains this was not an appropriate punishment for a first offense.  He states it seemed as though everyone was against him.

3.  The applicant provides no additional evidence in support of his request.

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.  Records available to the Board show the applicant enlisted in the Regular Army (RA) and entered active duty on 5 June 1979.  In October 1979, following successful completion of training, he was assigned to an armored cavalry regiment in Germany.  By June 1980 he had been advanced to pay grade E-3.

3.  On 4 February 1981 the applicant was notified by his unit commander of his (the commander’s) intent to initiate action to discharge him (the applicant) under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program (EDP)).  The commander noted as the basis for his recommendation the applicant’s total lack of self-discipline, chronic tardiness and absence from his place of duty, failure to respond to counseling, and lack of self discipline, including writing bad checks on a closed account.  The unit commander informed the applicant he was recommending issuance of a general, under honorable conditions discharge.  

4.  The applicant acknowledged the proposed separation action, waived his rights, and voluntarily consented to the discharge.  The applicant acknowledged that if he were furnished a general, under honorable conditions discharge he could expect to encounter substantial prejudice in civilian life.  

5.  On 5 February 1981 the appropriate separation authority approved the separation action and directed the applicant be issued a General Discharge Certificate.

6.  On 6 February 1981 he was reduced to pay grade E-2.  The basis for his reduction was not in the records available to the Board.  The applicant’s available records do not contain any record of punishment under Article 15 of the UCMJ (Uniform Code of Military Justice).

7.  On 5 March 1981 the applicant was accordingly discharged with a general, under honorable conditions discharge under the provisions of Army Regulation
635-200, paragraph 5-37 under the EPD – failure to maintain acceptable standards for retention.

8.  There is no evidence available to indicate the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board’s stature of limitations.

9.  Army Regulation 635-200 (Enlisted Separations) provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Paragraph 5-37, then in effect, provided for the EDP.  This program provided for the discharge of individuals who had completed at least 6 months, but less than 
36 months of active duty and who demonstrated by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential that they could not or would not meet acceptable standards.  Such personnel were issued a general or honorable discharge, as appropriate.

10.  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.  Although the applicant maintains that he was late one time and unduly punished under Article 15 of the UCMJ, the evidence of record shows the applicant was a substandard Soldier who demonstrated a poor attitude, lack of motivation, lack of self-discipline, and chronically tardy or absent from his place of duty.

2.  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.

3.  In view 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)                                         AR20090010569



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ABCMR Record of Proceedings (cont)                                         AR20090010569



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