IN THE CASE OF:	  

		BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090018061 


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 correction of his records to show that he was discharged in the pay grade of E-3.

2.  The applicant states that it was an injustice for his rank to be lowered from
E-3 to E-1 because he was unjustly discharged.  Accordingly, he wants his rank restored.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 23 August 1974 for a period of 2 years and training as a HAWK Missile Crewman.  He completed his one-station unit training at Fort Bliss, TX, was advanced to the pay grade of E-2 on 23 December 1974, and he was transferred to Germany on 24 January 1975.

3.  On 14 April 1975, nonjudicial punishment (NJP) was imposed against the applicant under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay and extra duty.

4.  On 6 May 1975, NJP was imposed against the applicant for two specifications of failing to go at the time prescribed to his appointed place of duty and one specification of being disrespectful in language towards a superior noncommissioned officer.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, and extra duty.  He did not appeal his punishment.

5.  On 15 May 1975, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
5-37 (Expeditious Discharge Program (EDP)).  He cited as the basis for his recommendation that the applicant had established a pattern of disrespect and recalcitrance that indicated he had absolutely no potential to be of worth as a Soldier.  He further stated that his inability to adapt to a military system had been prominently advertised by his flagrant disrespect toward superiors when given orders and his subsequent refusal to obey even the simplest orders.  He advised the applicant that he was recommending a general under honorable conditions discharge and that he had the right to decline the discharge and to submit a statement in his own behalf.

6.  After consulting with counsel the applicant elected to accept the discharge and he declined the opportunity to submit matters in his own behalf.

7.  The appropriate authority approved the recommendation on 21 May 1975 and directed that he be furnished a General Discharge Certificate.

8.  Accordingly, he was discharged on 13 June 1975 under honorable conditions in the pay grade of E-1, under the provisions of Army Regulation 635-200, paragraph 5-37.  He had served 9 months and 21 days of total active service.

9.  A review of his records failed to show that the applicant ever advanced beyond the pay grade of E-2.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  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 has failed to submit evidence that would satisfy this requirement.

2.  The applicant was reduced from the pay grade of E-2 to the pay grade of E-1 on 6 May 1975 due to his misconduct and was subsequently discharged on
13 June 1975 under the EDP.

3.  The applicant was serving in the pay grade of E-1 when discharge proceedings were initiated against him and he was given the option of declining the discharge and submitting matters in his own behalf.  There is no evidence in the available records to show that he elected to exercise any of those options.

4.  Therefore, he was properly discharged in the pay grade he held at the time of discharge and he has submitted no evidence to warrant a change in his pay grade, especially the pay grade of E-3, a pay grade he never held.

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)                                         AR20090018061



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ABCMR Record of Proceedings (cont)                                         AR20090018061



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