IN THE CASE OF:	 

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090014281 


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 an honorable discharge.

2.  The applicant states, in effect, he passed the Officer Candidate School (OCS) test with a score of 216, he completed his Bachelor's Degree, and he was an excellent Soldier at Fort Lewis, WA according to his executive officer and noncommissioned officers.  He adds he was then assigned overseas to the
8th Infantry Division in Mainz, Germany where one particular officer (Lieutenant B---) was a bully and very sarcastic to him until he was discharged.  He concludes that his discharge was improper and an injustice to him, which he has wanted to correct since 1975.

3.  The applicant provides no additional documentary evidence 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 enlisted in the Regular Army (RA) on 31 January 1974 for a period of 4 years.  Upon completion of training, he was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record), item 38 (Record of Assignments), and DA Form 2-1 (Personnel Qualification Record), item 35 (Record of Assignments) show, in pertinent part, he was assigned to:

   a.  Company C, 3rd Battalion, 60th Infantry, Fort Lewis, from 27 June 1974 to 8 September 1974;

	b.  Headquarters and Headquarters Company, 1st Brigade, 8th Infantry Division (Germany), from 11 October 1974 to 5 December 1974;

	c.  Company A, 2nd Battalion, 87th Infantry (Germany), from 6 December 1974 to 16 February 1975; and

   d.  Company B, 2nd Battalion, 87th Infantry (Germany), from 17 February 1975 to 13 August 1975.

4.  A certified translation of a Movement for the Education of Latin-America Diploma, dated 6 February 1974, shows the applicant completed the studies corresponding to the subject of Business Administration.

5.  A Mainz Army Education Center (Germany) letter, dated 5 February 1975, subject:  Military Test Results, shows the applicant achieved a score of 115 on the OCS test and a score of 101 on the Officer Qualification Inventory (OQI) test for a total score of 216.

6.  A DA Form 2166-4 (Enlisted Efficiency Report) for the period February through May 1975 shows the applicant was rated below average or unsatisfactory on four of the six characteristics and he was not recommended for promotion.  This document also shows the rater was Staff Sergeant M--- A. B--- and the reviewer was Second Lieutenant R----- J. L-----.

7.  A DA Form 2166-4 for the period June through August 1975 shows the applicant was rated unsatisfactory on all six characteristics with a 
recommendation that the applicant be denied continued active duty.  This document also shows the rater was Sergeant First Class R------ T. Z-------- and reviewer was Captain A---- J. D-------.

8.  On 29 July 1975, the company commander notified the applicant of his intent to initiate separation action to discharge him under the provisions of Headquarters, Department of the Army letter, dated 20 August 1973, subject:  Expeditious Discharge Program (EDP), based on his inability to get along with his superior noncommissioned and commissioned officers.

   a.  The commander stated that the applicant's poor duty performance was directly related to his poor attitude towards the military and his feeling that he was too good to be a Soldier and do the work required of him.  He added the applicant failed to demonstrate any promotion potential while in the command.

	b.  The applicant was advised that the final decision as to whether he would be discharged and, if so, the type of discharge he would be issued rested with the discharge authority.  The applicant was also advised of his rights.

9.  On 30 July 1975, the applicant acknowledged with his signature that he had been notified of the basis for the contemplated separation action under the EDP and he voluntarily consented to the discharge.  The applicant acknowledged that he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps and that he elected not to submit statements in his own behalf.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him.  He further acknowledged that he understood he could withdraw his voluntary consent to the discharge any time prior to the date the discharge authority approved his discharge.

10.  The company commander recommended approval of the applicant's separation under the EDP and forwarded the action to the separation authority.

11.  On 31 July 1975, the lieutenant colonel serving as the special court-martial convening authority, and the authorized separation authority in the applicant's case, approved the recommendation for separation under the provisions of the EDP and directed the applicant be issued a General Discharge Certificate.

12.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 15 August 1975 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37, and his service characterized as under honorable conditions.  At the time he had completed 1 year, 6 months, and 15 days of net active service.
13.  The applicant's military personnel records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 10 October 1979, that shows the applicant requested upgrade of his general, under honorable conditions discharge to an honorable discharge.  On 29 January 1981, the Army Discharge Review Board (ADRB), after consideration of the applicant's military records and all other available evidence, determined the applicant's discharge was proper and equitable and voted not to change the characterization of his service.  The applicant was notified of the ADRB's decision on 30 January 1981.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  The regulation in effect at the time, as updated by Headquarters, Department of the Army, DAPE-MPE-PS, message, dated
20 August 1973, established the basic authority for separation of enlisted personnel under the provisions of Chapter 5 (Separation for the Convenience of Government), paragraph 5-37, under the EDP.  The EDP provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and/or failure to demonstrate promotion potential.  Members separated under the EDP could be awarded a character of service of honorable or general, under honorable conditions, as appropriate.

15.  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 contends that his general, under honorable conditions discharge should be upgraded to an honorable discharge because he was an excellent Soldier; however, he was bullied by superiors and his discharge was improper and unjust.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  There is no evidence of record, and the applicant provides insufficient evidence, to support his claim that he was bullied by his superior commissioned and noncommissioned officers.  Thus, the applicant's contention is not sufficiently mitigating to warrant relief.

4.  The applicant's military records show he received two enlisted evaluation reports during a seven-month period that were rendered by two different raters. 
The first report shows the preponderance of the applicant's performance was rated below average and unsatisfactory, and the second report shows his overall performance was rated unsatisfactory.  Thus, the applicant's record of service clearly shows that his overall quality of service was not sufficiently meritorious to warrant an honorable discharge.  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)                                         AR20090014281



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ABCMR Record of Proceedings (cont)                                         AR20090014281



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