IN THE CASE OF:	

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090016708


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 an upgrade of his general discharge (GD).

2.  The applicant states he was a stupid kid when he served in the Army and he missed his family and friends.  He did not receive the job for which he enlisted; instead he ended up in the middle of a desert as an Air Defense Artillery (ADA) crewman.  The Army came out with the expeditious discharge program (EDP) and his chain of command asked if anyone was interested in getting out early.  He expressed interest and was told his discharge could be upgraded later.

3.  The applicant provides no additional 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's records show he enlisted in the Regular Army for a period of 3 years on 3 November 1981 and for training in military occupational specialty (MOS) 16C (Hercules Fire Control Crewmember).  He completed basic combat and advanced individual training and was awarded MOS 16C.   The highest rank/grade he attained during his military service was private (PVT)/E-2.

3.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 26 May 1982, for being absent without leave (AWOL) from 20 May to 25 May 1982.  His punishment consisted of a forfeiture of $235.00 pay for 2 months, 35 days of restriction, and 35 days of extra duty.

4.  The applicant’s records reveal multiple instances of counseling by his chain of command regarding various infractions including failure to repair and missing formation.  A bar to reenlistment was placed against him on 10 June 1982.

5.  On 10 June 1982, the applicant’s immediate commander advised the applicant that he intended to recommend him for discharge under the provisions paragraph 5-31, Army Regulation 635-200 (Personnel Separations) (Expeditious Discharge Program (EDP)) due to his inability to adapt to a military environment and lack of motivation and self-discipline.  The applicant acknowledged notification.

6.  On 10 June 1982, the applicant’s immediate commander initiated separation action against the applicant under the EDP.

7.  On 12 July 1982, the separation authority approved the applicant's discharge and directed that he receive a GD.  Accordingly, the applicant was discharged on 19 July 1982.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged under the provisions of paragraph 5-31h(1) of Army Regulation 635-200 with a character of service of under honorable conditions.  This form further confirms he completed 8 months and 2 days of creditable active military service.

8.  The available evidence does not show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 in the version in effect at the time 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 GD is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

10.  Army Regulation 635-200 (Personnel Separations) 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 requests an honorable discharge.

2.  The applicant contentions are without merit.  He enlisted for "ADA" training; specifically for training in MOS 16C.  He received the training for which he enlisted and he was assigned duties in his MOS.

3.  The evidence of record shows the applicant displayed a pattern of misconduct as evidenced by his acceptance of nonjudicial punishment and his multiple counseling sessions.  Accordingly, his chain of command initiated separation action against him for failure to adapt to a military environment and/or lack of motivation.  The applicant voluntarily consented to his discharge under the EDP. 

4.  The applicant's separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.  

5.  Based on the applicant's overall service record the applicant's service does not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he 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)                                         AR20090016708



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ABCMR Record of Proceedings (cont)                                         AR20090016708



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