BOARD DATE:	  February 25, 2010

		DOCKET NUMBER:  AR20090016654 


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 discharge to an honorable discharge.  He also requests that his letter of appreciation be added to his
DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states that it was not until he received a copy of his records that he realized that he should have received an honorable discharge and that he noticed that his letter of appreciation was not entered on his DD Form 214.

3.  The applicant provides a copy of his DD Form 214, a copy of his record of assignments, and a copy of a letter of appreciation 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 was born on 28 September 1953 and he enlisted in the Regular Army (RA) on 6 April 1977 for a period of 3 years, training as a track vehicle mechanic and assignment to Europe.

3.  He was transferred to Fort Knox, KY to undergo his basic training and on
19 May 1977, nonjudicial punishment (NJP) was imposed against him for failing to go at the time prescribed to his appointed place of duty.

4.  He remained at Fort Knox to undergo his advanced individual training (AIT) as a track vehicle mechanic.  He was declared an academic failure and he was transferred to Fort Jackson, SC to undergo AIT as a food service specialist.

5.  On 20 July 1977, NJP was imposed against him for disobeying a lawful order from a superior noncommissioned officer.

6.  On 29 September 1977, he was transferred to Germany for assignment to a transportation company in Kaiserslautern.

7.  On 28 November 1977, NJP was imposed against him for being disorderly in the barracks by having intercourse with a German National female.

8.  On 8 February 1978, NJP was imposed against him for failing to go at the time prescribed to his place of duty.

9.  On 5 October 1979, NJP was imposed against him for disobeying a lawful order from a superior noncommissioned officer.

10.  On 15 January 1980, NJP was imposed against the applicant for four specifications of failing to go at the time prescribed to his appointed place of duty.

11.  On 23 January 1980, the applicant’s commander initiated action to discharge the applicant from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31, under the Expeditious Discharge Program (EDP).  He cited as the basis for his recommendation that the applicant failed to adapt to the rules and regulations governing military service as evidenced by his refusal to obey lawful orders from his commissioned and noncommissioned officers, that his behavior on and off duty had been unsatisfactory and required extensive supervision by the entire chain of command, and that his disregard of basic military standards and lack of motivation/desire to adhere to Army standards warranted immediate discharge from the service.  He advised the applicant that he was recommending a general discharge.

12.  The applicant acknowledged receipt of the discharge notification and voluntarily consented to the discharge.  He elected not to submit a statement in his own behalf and acknowledged that he had been afforded the opportunity to consult with counsel and that he understood the consequences of receiving a general discharge.

13.  The appropriate authority approved the recommendation for discharge and directed that he be furnished a general discharge.

14.  Accordingly, he was discharged under honorable conditions on 6 February 1980 under the provisions of Army Regulation 635-200, chapter 5, due to his failure to maintain acceptable standards for retention and the EDP.  He had served 2 years, 10 months, and 1 day of total active service.

15.  The Letter of Appreciation provided by the applicant is contained in his Official Military Personnel File (OMPF) and it is not annotated on his DD Form 214.

16.  There is no evidence in the applicant’s OMPF which shows that he ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

17.  The Department of the Army began testing the EDP in October 1973.  In a message dated 8 November 1974 the Deputy Chief of Staff for Personnel announced the expansion of the EDP.  The program provided for the separation of Soldiers who’s acceptability, performance of duty, and/or potential for continued effective service fall below the standards required for retention in the Army.  Soldiers could be separated under this program when subjective evaluation of their commanders identifies them as lacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  Soldiers had to consent to separation under this program in order for commanders to separate them under the EDP.  Otherwise, a commander was required to separate Soldiers under other provisions of the regulation which in most cases resulted in an under other than honorable conditions discharge.

18.  Army Regulation 635-5 (Personnel Separations - Separation Documents) serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that letters of appreciation, commendation or achievement will not be entered on the DD Form 214.  They will be properly filed in the OMPF.


19.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), governs the policies and procedures for the separation of enlisted personnel.  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.

20.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted; however, they are not supported by either the evidence submitted with his application or the evidence of record.  He was properly notified of the commander’s intent to recommend separation with a general discharge and he was required to consent to the separation before the recommendation could be processed further.  The applicant consented to the separation under the EDP and he elected not to submit matters in his own behalf.

4.  The applicant's service was not fully honorable and lacking evidence to show otherwise, there is no basis to upgrade his discharge to fully honorable.

5.  The applicant’s contention that his letter of appreciation should be entered on his DD Form 214 has been noted and found to lack merit.  There are no provisions for entering letters of appreciation on the DD Form 214.  Accordingly, there is no error or injustice regarding the preparation of his DD Form 214 in that regard.

6.  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 applicant’s 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)                                         AR20090016654



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ABCMR Record of Proceedings (cont)                                         AR20090016654



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