IN THE CASE OF:	

		BOARD DATE:	       14 MAY 2009

		DOCKET NUMBER:  AR20090003456 


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, in effect, that his general discharge be upgraded to  fully honorable and that the reason for discharge be changed to “separated for the convenience of the government.”

2.  The applicant states, in effect, that in 1980 a female friend came to visit her brother who was in the barracks next to his.  However, she did not make it to her brother’s barracks, because she was stopped by several males, taken into a room, and raped.  He states that when he attempted to intervene, he was held at bay with weapons while the men took turns with the young lady on the floor of their latrine.  The applicant states that he took the young lady to a hospital, called her parents and stayed at the hospital overnight until she was released the next morning.  He states he did not communicate with his unit immediately, which he understands was in poor judgment and resulted in him being reported absent without leave.  

3.  The applicant would like to apply for a position with the Active Guard Reserve (AGR) but needs to upgrade his discharge to qualify for the position.

4.  The applicant provides a copy of the AGR vacancy announcement, three     DA Forms 2166-8 (Noncommissioned Officer Evaluation Reports (NCOERs)),    a Personnel Qualification Record, DA Form 3349 (Physical Profile), DA Form 5500 (Body Fat Content Worksheet (Male)), three DD Forms 214 (Certificates   of Release or Discharge from Active Duty), a memorandum in reference to Security Clearance Verification, two copies of Army Achievement Medals certificates/citations , a Letter of Appreciation, and a Certificate of Achievement in support of this 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 military personnel record shows that he enlisted in the Army on 8 January 1980 in pay grade Private/E-1.  He completed training, was awarded military occupational specialty (MOS) 91B, and he was assigned to Fort Ord, California. 

3.  The applicant’s records contain two nonjudicial punishments (NJPs).  The first, dated 29 April 1980, was for failure to obey a lawful order (twice); the second, dated 2 December 1980, was for failure to report for work.

4.  On 23 December 1980, the applicant’s company commander notified him of his intent to discharge him under the provisions of paragraph 5-31, Army Regulation (AR) 635-200, expeditious discharge program (EDP) because of his inability to adapt to military standards of good order and discipline.  The applicant acknowledged notification on the same date.  

5.  On 27 January 1981, the applicant was discharged under the provisions of paragraph 5-31, AR 635-200 for failure to maintain acceptable standards for retention (EDP).  He was issued a general discharge under honorable conditions and transferred to the United States Army Reserve Control Group.

6.  On 24 September 1998, the applicant enlisted in the California Army National Guard (CAARNG) and he is currently serving as a staff sergeant in pay grade   E-6.

7.  His NCOERs show successful ratings and indicate that he is in good standing with the CAARNG.
8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15 year statute of limitations.

9.  AR 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Paragraph 5-31, then in effect, provided for the EDP.  This program provided for the discharge of individuals who had completed at least 6 months, but less than 36 months of active duty and who demonstrated by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential, that they could not or would not meet acceptable standards.  Such personnel were issued a general or honorable discharge, as appropriate

10.  AR 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 was a substandard Soldier who demonstrated a poor attitude, lack of motivation, lack of self-discipline, and an inability to adapt to the Army.  Because he could not or would not meet acceptable standards of conduct, his commander recommended that he be discharged under the EDP.

2.  The applicant has provided no proof, and the record does not substantiate, that the alleged rape took place.  Even if true, there is no evidence the incident served as a basis for the applicant’s discharge.

3.  Given the applicant’s substandard conduct, his separation processing is presumed to have been conducted in accordance with law and regulations applicable at the time.  Both the character of the discharge and the reason for discharge are commensurate with the applicant's overall record of military service.

4.  The applicant's successful career in the Army National Guard is recognized and applauded; in all respects, he appears to be highly successful and a credit to the Army National Guard.  However, the applicant's accomplishments subsequent to his 1981 discharge are not sufficient to warrant an upgrade of that discharge.

5.  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.




      
      _______ _   __xxx_____   ___
               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)                                         AR20090003456



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ABCMR Record of Proceedings (cont)                                         AR20090003456



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