IN THE CASE OF:	  

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090020962 


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 would like his discharge upgraded for education and benefits purposes.

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 enlisted in the Regular Army on 8 July 1980 for a period of 
3 years.  He successfully completed One Station Unit Training and was awarded military occupational specialty 13B (cannon crewman).  
3.  On 3 November 1980, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 17 October 1980 to 
31 October 1980.  His punishment consisted of a forfeiture of pay.        

4.  In June 1981, nonjudicial punishment was imposed against the applicant for failing to go to his appointed place of duty at the time prescribed time.  His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction, and extra duty.        

5.  On 29 October 1981, the applicant was notified of a pending separation action against him under the provisions of Army Regulation 635-200, paragraph 5-31, under the Expeditious Discharge Program due to failure to maintain acceptable standards for retention.  The unit commander recommended separation with a general discharge and cited the applicant's unacceptable duty performance, repeated acts of misconduct (AWOL), and his unwillingness to improve his duty performance.

6.  On 29 October 1981, the applicant acknowledged notification of the proposed discharge action, voluntarily consented to discharge from the Army, and elected not to make a statement on his behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if issued a general discharge and that he had been provided an opportunity to consult with counsel.

7.  On 2 November 1981, the separation authority approved the recommendation for separation and directed that the applicant be issued a general discharge.

8.  Accordingly, on 18 November 1981, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, Expeditious Discharge Program, for failure to maintain acceptable standards for retention with a general discharge.  He had served a total of 1 year, 4 months, and 11 days of total active service with 14 days of lost time.  

9.  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. 

10.  Army Regulation 635-200, in effect at the time, set for 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.

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

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  The applicant's separation under the Expeditious Discharge Program was voluntary and the evidence shows he voluntarily consented to the discharge.  He also acknowledged he might expect to encounter substantial prejudice in civilian life if issued a general discharge.

3.  The applicant's record of service included two nonjudicial punishments and 
14 days of lost time.  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 have jeopardized 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)                                         AR20090020962





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090020962



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1