IN THE CASE OF:	

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090010667 


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 under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that due to the loss of his mother, he requested and was granted an early separation from the Army in order to take care of his younger siblings.  The applicant concludes that he feels he was punished by receiving a general discharge rather than an honorable discharge.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) as documentary evidence in support of this 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 and entered active duty on 1 March 1974.  He completed basic combat training and advanced individual training (AIT).  Upon completion of AIT he was awarded military occupational specialty 63C (Track Vehicle Mechanic).  The highest rank and grade the applicant attained during his military service was private/pay 
grade E-2.  He held the rank of private/pay grade E-1 at the time of his separation.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five occasions:

	a.  on 18 July 1974, for violating Article 86 of the UCMJ by departing his appointed place of duty in an absent without leave (AWOL) status on 2 July 1974 and remaining absent until 15 July 1974;

	b.  on 24 September 1974, for violating Article 86 of the UCMJ by departing his appointed place of duty in an AWOL status on 4 September 1974 and remaining absent until 18 September 1974;

	c.  on 2 October 1974, for two specifications of violating Article 86 of the UCMJ by departing his appointed place of duty in an AWOL status on the morning of 1 October 1974 and for failing to go at the time prescribed to his place of duty that same afternoon;

	d.  on 11 August 1975, for violating Article 86 of the UCMJ by departing his appointed place of duty in an AWOL status on 22 July 1975 and remaining absent until 28 July 1975; and

	e.  on 10 November 1975, for violating Article 91 of the UCMJ by being disrespectful in language toward a superior noncommissioned officer and for violating Article 90 of the UCMJ by disobeying a lawful command from a superior commissioned officer.

4.  Headquarters, 2nd Battalion (Armor), 8th Cavalry Regiment, 1st Cavalry Division, Fort Hood, Texas, Summary Court-Martial Order Number 7, dated 20 January 1975, shows the applicant was arraigned and tried for two charges.  The applicant pled guilty, was found guilty, and sentencing was adjudged on 20 January 1975.  The charges were as follows:

	a.  Charge I, for violating Article 91 of the UCMJ by being disrespectful in language toward a superior noncommissioned officer on 21 November 1974; and

	b.  Charge II, for violating Article 86 of the UCMJ by departing his appointed place of duty in an AWOL status on 3 December 1974 and remaining absent until 10 January 1975.

5.  On 11 November 1975, the applicant's immediate commander notified the applicant of his intent to initiate action to discharge him from the Army under the provisions of chapter 5 of Army Regulation 635-200 (Personnel Separations), Expeditious Discharge Program (EDP), by reason of his numerous violations of the UCMJ, his failure to respond to numerous adverse counseling sessions, and his failure to demonstrate potential for advancement to the rank of private first class/pay grade E-3.  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.

6.  On 11 November 1975, the applicant acknowledged receipt of the notification. 
He consulted with legal counsel and was advised of the basis for the contemplated separation from the Army under the provisions of chapter 5 of Army Regulation 635-200, 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 on his own behalf.

7.  On 11 November 1975, the applicant's immediate commander recommended that he be discharged in accordance with chapter 5 of Army Regulation 635-200 under the EDP and that he be issued a General Discharge Certificate.

8.  On 17 November 1975, the separation authority approved the applicant's discharge and directed that he be furnished a General Discharge Certificate.

9.  Headquarters, III Corps and Fort Hood, Fort Hood, Texas, Special Orders Number 241, dated 5 December 1975, discharged the applicant effective 8 December 1975.  These orders also show the applicant was to be furnished a general discharge under honorable conditions.

10.  A Headquarters, III Corps and Fort Hood, letter, dated 8 December 1975, subject:  Reason and Authority for Separation, shows an assistant adjutant general provided the applicant information pertaining to his separation action per his request.  The information provided was as follows:

	a.  Date of Separation:  8 December 1975;

	b.  Reason for Separation:  Failure to maintain acceptable standards for retention (EDP);

	c.  Authority for Separation:  Paragraph 5-37, Army Regulation 635-200; and

	d.  Reenlistment Eligibility Code:  4.

11.  On 8 December 1975, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed a total of 1 year, 6 months, and 27 days of creditable active military service and he had 72 days of lost time.

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

13.  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.

14.  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's contention that his general discharge under honorable conditions should be upgraded to an honorable discharge was carefully considered.

2.  There is no evidence in the available record and the applicant did not provide any substantiating evidence that supports his claim that due to the loss of his mother, he requested and was granted an early separation from the Army in order to take care of his younger siblings.

3.  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.

4.  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 motivation, inability to adapt emotionally, and hostility towards the Army.  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.

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)                                         AR20090010667



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ABCMR Record of Proceedings (cont)                                         AR20090010667



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