IN THE CASE OF:	

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090013263 


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 (GD) be upgraded.

2.  The applicant states, in effect, he does not believe GD appropriately characterizes his service.

3.  The applicant provides no supporting documentation

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 6 January 1976.  He completed the training requirements and was awarded military occupational specialty 91B (Medical Specialist). 

3.  On 11 November 1976, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) for 4 days.

4.  On 14 March 1977, the applicant's command approved his application for entry into the Army Warrant Officer Rotary Wing Aviator Course.  

5.  On 25 April 1977, the applicant was advanced to specialist four (E-4).

6.  The applicant was notified he was not selected for the warrant officer course on 26 April 1977.

7.  The record contains one Enlisted Evaluation Report that was completed on
20 May 1977.  His rater rated him "among the best' and the indorser rated him as "superior to most."  

8.  The applicant was referred to mental health for maladaptive behavior.  On 
20 September 1977, the findings were forwarded to the Commander, U.S. Army Medical Department Activity, Fort Leavenworth, Kansas.  The applicant was found to be mentally competent but emotionally immature.  He was diagnosed as having an immature personality and it was recommended that he be separated from the service.

9.  On 23 September 1977, the applicant's unit commander initiated separation proceedings under the provisions of Army Regulation 635-200, paragraph 5-37 (Expeditious Discharge Program (EDP).  The unit commander stated the reason for the proposed action was the applicant's lack of ability to adapt to the Army and perform duties in a military manner; frequent absences from duty without authority; lack of ability to follow orders; an expressed desire to be separated from the military; and exhibition of an emotional maladjustment.  The unit commander indicated that the applicant had been counseled several times for his behavior and he demonstrated an inability or apathetic attitude towards correcting his improper behavior.  The unit commander recommended that the applicant be separated with a GD.  The available record does not contain any copies of the counseling statements or any record of absences other than the 1976 NJP.

10.  On 27 September 1977, after consulting with counsel, the applicant acknowledged the proposed separation action and voluntarily consented to the discharge.  



11.  The discharge authority approved the discharge on 28 September 1977.

12.  On 30 September 1977, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-37, EDP, due to failure to maintain acceptable standards for retention with a GD.  He had 1 year, 8 months, and 25 days of creditable active service with 4 days of lost time due to being AWOL.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  It provides the following pertinent information:

   a.  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.

   b.  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.

	c.  Chapter 5, then in effect, provided separation under the EDP.  This program provided that an individual 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 could be separated.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel.  

14.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he does not believe the GD appropriately characterize his service.

2.  Except for one Article 15, the available record shows that prior to his rejection for attendance at the Army Warrant Officer Rotary Wing Aviator Course, the applicant was a productive and valued member of his command.  It appears there was a change in his attitude and behavior after this point.  His service appears to have taken a downward turn and he was not considered so meritorious as to warrant an honorable discharge.

3.  The applicant has the burden of proving an error or injustice occurred by a preponderance of the evidence.

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)                                         AR20090013263



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ABCMR Record of Proceedings (cont)                                         AR20090013263



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