IN THE CASE OF:	  

		BOARD DATE:	    10 June 2010

		DOCKET NUMBER:  AR20090021030 


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:

* His discharge was inequitable because it was based on one person's opinion with no other adverse action
* His commander never disclosed in writing why he was initiating discharge action and he did not explain the reason for recommending service be characterized as general (under honorable conditions)
* There was no corrective action initiated by the commander for improvement
* He successfully completed basic and advanced individual training
* After his discharge he completed his full remaining requirement in the Individual Ready Reserve 

3.  The applicant provides:

* Five character reference letters
* DD Form 214 (Certificate of Release or Discharge 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 13 July 1981 for a period of 
4 years.  He successfully completed One Station Unit Training in military occupational specialty 13E (cannon fire direction specialist).  

3.  Between 14 January 1982 and 22 January 1982, the applicant was counseled on three occasions for various infractions which included missing formation, late submission of pay action, indebtedness, responsibility for supporting family, late for duty, and duty performance. 

4.  On 23 February 1982, the applicant was notified (in writing) of his pending separation under the provisions of Army Regulation 635-200, paragraph 5-31, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  The unit commander recommended separation with an honorable discharge and cited:

* The applicant's inability to adapt socially or emotionally
* The applicant's inability to adapt his family life to conform with his military duties
* He demonstrated a lack of self-discipline towards his military duties which caused poor performance and attendance
* The demonstrated financial and emotion hardship being forced on dependents as a result of his inability to adjust to military life 

5.  On 23 February 1982, 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 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.

6.  On 24 February 1982, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

7.  Accordingly, the applicant was discharged on 3 March 1982 with a general discharge under the provisions of Army Regulation 635-200, paragraph 5-31, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  He had served a total of 7 months and 21 days of total active service.  

8.  The applicant provided five character reference letters from co-workers.  They attest the applicant is an outstanding worker with a strong work ethic, dedicated, a meticulous hard worker, kind, respectful, responsible, professional, highly motivated, and a tremendous asset. 

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions his commander never disclosed in writing why he was initiating discharge action and he did not explain the reason for recommending the applicant's service be characterized as general (under honorable conditions) were noted.  However, evidence of record shows in February 1982 the applicant was notified in writing of his pending separation and the reasons for such action.  The applicant acknowledged notification of his proposed separation and voluntarily consented to this separation.  In addition, his unit commander recommended separation with an honorable discharge; however, the separation authority directed the issuance of a general discharge. 

2.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

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

4.  The applicant's brief record of service included numerous counseling statements for various infractions.  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.
  
5.  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.

6.  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)                                         AR20090021030





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ABCMR Record of Proceedings (cont)                                         AR20090021030



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