IN THE CASE OF:	  

		BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090019073 


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 that his general under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states he is unable to receive a government grant for school unless his discharge is upgraded.  He claims he really never had a chance to explain his side.

3.  The applicant provides no documentary evidence in support of his application.

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 record shows that he enlisted in the Regular Army on 29 January 1979.  He successfully completed basic combat training and advanced individual training at Fort Bliss, Texas, and was awarded military occupational specialty 16E (Hawk Fire Control Crewman).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he was advanced to private/E-2 on 10 April 1980 and this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private/
E-1 for cause on 17 January 1980.

4.  The record shows the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on the following two separate occasions for the offenses indicated:

* on 11 May 1979, for wrongfully possessing marijuana
* on 4 January 1980, for disobeying a lawful order

5.  On 17 January 1980, the suspended reduction as a result of the 4 January 1980 nonjudicial punishment imposed on the applicant was vacated for cause and the applicant was reduced to private/E-1.

6.  The record also shows the applicant was formally counseled by members of his chain of command on 10 separate occasions for various disciplinary infractions.

7.  On 25 February 1980, the applicant's unit commander notified him of his intent to initiate action to separate him under the provisions of the Expeditious Discharge Program (EDP) and that he was recommending the applicant receive a GD.  The unit commander cited the applicant's lack of self-discipline, lack of promotion potential, and inability to adapt socially or emotionally.

8.  The applicant acknowledged the notification in writing and indicated he voluntarily consented to the recommended EDP discharge.  He further acknowledged that he understood that if he received a GD, he could expect to encounter substantial prejudice in civilian life and he acknowledged that he had been afforded the opportunity to consult with legal counsel.  The applicant also elected not to make a statement in his own behalf.

9.  On 17 March 1980, the separation authority approved the applicant's separation under the provisions of the EDP and directed the applicant receive a GD.  On 10 April 1980, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was separated under the provisions of paragraph 5-31, Army Regulation 635-200 (Personnel Separations), after completing 1 year, 2 months, and 12 days of active military service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, paragraph 5-31 then in effect, provided the policy and outlined the procedures for separating individuals under the EDP.  The EDP provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.  An HD or GD could be issued under this program.

12.  Paragraph 3-7a of Army Regulation 635-200 provides that an HD 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.  The applicant's contentions that his discharge should be upgraded so he can receive a government grant for school and because he was never allowed to provide his side of the story have been carefully considered.  However, the evidence is not sufficient to support this claim.  Further, eligibility for benefits alone is not a basis to upgrade a discharge.

2.  The evidence of record confirms the applicant's separation processing under the provisions of the EDP was accomplished in accordance with the applicable regulation and that the applicant voluntarily consented to the discharge and elected not to make a statement in his own behalf.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The applicant's record reveals an extensive disciplinary history that clearly diminished the quality of his service below that meriting a fully honorable discharge.  Therefore, absent any evidence of error or injustice, there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.

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 has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090019073



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090019073



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1