IN THE CASE OF:	  

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090018870 


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 the reason and authority and the Separation Program Designator (SPD) code for his discharge be updated.

2.  The applicant states the SPD code entered on his DD Form 214 (Report of Separation from Active Duty) with an effective date of 20 December 1978 for paragraph 5-31 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) does not exist.

3.  The applicant provides a copy of his DD Form 214.

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 military personnel records show he enlisted in the Regular Army on 10 August 1977 for a period of 4 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 25 September 1978, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order from a noncommissioned officer.

4.  On 18 January 1978, the applicant was assigned to Company A, 1st Battalion, 26th Infantry in Germany.

5.  On 6 November 1978, the applicant's commander notified him he was initiating action to discharge him under the provisions of Army Regulation
635-200, paragraph 5-31a(4) (Expeditious Discharge Program (EDP)).  The commander stated the reason for this action was the applicant's inability to adapt socially or emotionally to the Army.  The commander recommended the applicant be furnished an honorable discharge.

6.  The applicant's commander advised him the type of discharge he would be issued rests with the discharge authority and that if he received a general discharge he may expect to encounter substantial prejudice in civilian life.  The commander also advised him of his right to consult with an officer of the Judge Advocate General's Corps prior to completing his acknowledgements, his right to decline this discharge, and his right to submit a statement in his own behalf.

7.  The applicant acknowledged the notification of his proposed discharge and voluntarily consented to the discharge.  He did not submit statements in his own behalf.

8.  The applicant's commander requested that he be discharged under the provisions of the EDP.  The commander stated the applicant could not and would not listen to counseling by his superiors in their attempt to help him adapt to the service.  The commander stated it would be in the best interest of both the service and the applicant that he be eliminated before he becomes a serious disciplinary problem.

9.  The appropriate authority approved the applicant’s expeditious discharge and directed he be furnished an Honorable Discharge Certificate.


10.  On 20 December 1978, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-31.  He had completed 1 year, 4 months, and 11 days of active service that was characterized as honorable.  Item 9c (Authority and Reason) contains the entry "PAR[graph] 5-31 AR [Army Regulation] 635-200 SPD JGH."

11.  The applicant applied to the Army Discharge Review Board (ADRB) to have the reason for his discharge changed.  On 22 February 1983, the ADRB denied his request for a change of reason.  He appeared in a personal hearing before the ADRB and on 31 May 1983 the ADRB upheld their denial for a change of reason for his discharge.

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31 of this regulation provided for the discharge of enlisted personnel had completed at least 6 months, but less than 36 months of active duty and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  The regulation provided that no individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either a general or an honorable discharge.

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), effective 12 April 1978, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD's to be used for these stated reasons.  The regulation showed that the SPD “JGH” as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as “Expeditious Discharge Program (EDP) (Failure to maintain acceptable standards for retention.)”  The authority for discharge under this SPD was Army Regulation 635-200, paragraph 5-31.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the reason for his discharge should be updated because the SPD he was assigned at discharge does not exist.

2.  The applicant was discharged under the EDP.  Army Regulation 635-5-1 in effect at the time of his discharge provided the SPD "JGH" and the reason “Expeditious Discharge Program (EDP) (Failure to maintain acceptable standards for retention.)”  The authority is listed as Army Regulation 635-200, paragraph 5-31.  Therefore, the applicant's SPD and reason for discharge are correct as entered on his DD Form 214 for the period ending 20 December 1978.

3.  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 that requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090018870



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ABCMR Record of Proceedings (cont)                                         AR20090018870



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