BOARD DATE:	  February 23, 2010

		DOCKET NUMBER:  AR20090017103 


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, under honorable conditions discharge to a fully honorable discharge.  

2.  The applicant states that he is now more responsible and mature. 

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) for the period ending 23 March 1976, in support of his request. 

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 23 July 1974.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 82C (Artillery Surveyor).  The highest rank/grade he attained during his military service was private/E-2.  

3.  The applicant’s records also show he served in Germany from on or about 4 April 1975 to on or about 18 September 1975.  His records further show he was awarded the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant’s records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

	a.  on 1 November 1974, for failing to go at the time prescribed to his appointed place of duty on or about 29 October 1974.  His punishment consisted of a forfeiture of $50.00 pay, 14 days of restriction, and 14 days of extra duty;

	b.  on 24 November 1975, for willfully disobeying a lawful order from his company first sergeant on or about 31 October 1975.  His punishment consisted of 14 days of extra duty; and

	c.  on 26 January 1976, for willfully disobeying a lawful order from a superior noncommissioned officer on or about 14 January 1976.  His punishment consisted of a forfeiture of $50.00 pay and 14 days of extra duty.

5.  On 19 February 1976, the applicant’s immediate commander notified the applicant that he intended to recommend his discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program or EDP), by reason of poor attitude, lack of motivation, lack of self-discipline, failure to demonstrate promotion potential, quitter attitude, inability to accept instructions and directions, and substandard performance.  

6.  On 25 February 1976, the applicant acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army; the effect on future enlistment in the Army; the possible effects of a general, under honorable conditions discharge; and of the procedures and rights that were available to him. He voluntarily consented to this discharge.  The applicant further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.  He also elected not to submit a statement in his own behalf.

7.  On 25 February 1976, the applicant’s immediate commander recommended the applicant be discharged with a General Discharge Certificate.

8.  On 10 March 1976, the separation authority approved the applicant's discharge under the provisions of paragraph 5-37 of Army Regulation 635-200 by reason of failure to meet acceptable standards for continued military service and directed that he receive a General Discharge Certificate.  On 23 March 1976, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed 1 year, 8 months, and 1 day of creditable active military service.  

9.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

10.  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.

11.  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 discharge should be upgraded.
2.  The evidence of record shows that the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel because of his inability to adapt socially or emotionally.  Accordingly, his immediate commander initiated separation action against him.  More importantly is the fact that he voluntarily consented to his discharge.  

3.  The applicant's 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 reason for separation therefore were appropriate considering all the facts of the case.  Based on his overall record, the applicant's service does not meet the standards of acceptable conduct of duty for Army personnel.  

4.  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 record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.  He has not shown error, injustice, or inequity for the relief he requests.  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)                                         AR20090017103



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090017103



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1