IN THE CASE OF:	  

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090018702 


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 his general discharge be upgraded to honorable.

2.  The applicant states:

* he is a homeless veteran
* after he received his hardship discharge and was informed that it would be honorable he stored the packet away and carelessly presumed that everything was as it should be and never opened it
* shortly after his discharge he lost the sight in his right eye and was diagnosed as "legally blind" and he had a severe myopic condition (macular degeneration with ocular holes) in his left eye
* years after his trauma he was diagnosed with a pre-condition of post-traumatic stress syndrome in relationship with "Dianetics," which unbeknownst to him was the foundation of his hardship discharge
* his military records were lost and ignorance of the process as well as this long-term condition prevented and hindered his ability for rational/logical thought
* he always wanted to serve and it was his intention to reenlist once his hardship was over, but his vision trauma made this impossible

3.  The applicant provides:

* authorization for release of information
* 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 12 August 1975 for a period of 3 years.  He successfully completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (infantryman).

3.  On 20 August 1975, nonjudicial punishment was imposed against the applicant for using disrespectful language toward a superior noncommissioned officer.  His punishment consisted of a forfeiture of pay.

4.  On 9 February 1976, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay (suspended) and extra duty (suspended).

5.  On 12 February 1976, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 5, paragraph 5-37, under the Expeditious Discharge Program.  The unit commander's reasons for his proposed action were the applicant's:

* poor attitude
* lack of motivation
* inability to adapt socially
* failure to demonstrate promotion potential

6.  The unit commander initiated separation action because of the applicant's:

* quitter attitude
* hostility toward the Army
* inability to accept instructions and directions
* clearly substandard performance
* lack of cooperation with peers and superiors

7.  On 12 February 1976, the applicant acknowledged notification of his proposed discharge, voluntarily consented to discharge from the Army, and elected not to make a statement on his behalf.  He was advised by counsel of the basis for this contemplated separation with a General Discharge Certificate and its effect and the rights available to him.

8.  On 17 February 1976, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

9.  On 18 February 1976, the applicant underwent a separation physical examination and was found to be qualified for separation.  He reported that his was in "good health."

10.  Accordingly, the applicant was discharged on 18 March 1976 with a general discharge under the provisions of Army Regulation 635-200, paragraph 5-37, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  He had served 7 months and 7 days of total active service.

11.  There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

12.  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.  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.
13.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends he received a hardship discharge and was informed it would be honorable, the evidence of record shows he acknowledged notification of his proposed discharge under the Expeditious Discharge Program and he was advised by counsel of the basis for this contemplated separation with a general discharge certificate and its effect and the rights available to him on 12 February 1976.

2.  The applicant's separation under the Expeditious Discharge Program was voluntary and the evidence shows he voluntarily consented to the discharge.

3.  The applicant's record of service included two nonjudicial punishments.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20090018702



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ABCMR Record of Proceedings (cont)                                         AR20090018702



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