IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100000150 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states:

* he was suffering from severe depression after learning his mother was terminally ill
* this devastating news and subsequent loss of his mother has haunted him for over 30 years
* at the time in question he did not know what he had or who to talk to so he accepted the offer of immediate separation by signing whatever documents his superiors placed before him
* little did he know what that decision would cost him nor that there was a name and possible treatment for what he was going through mentally
* he went undiagnosed for many years 

3.  The applicant provides three Department of Veterans Affairs (VA) Forms
21-4142 (Authorization and Consent to Release Information to the VA).

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 27 January 1976 for a period of 4 years.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty 11C (indirect fire infantryman).

3.  On 19 September 1976, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay (suspended) and extra duty.

4.  On an unknown date, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5, paragraph 5-37, under the Expeditious Discharge Program.  The unit commander's reasons for his proposed action were the applicant's:

* lack of motivation
* lack of self-discipline

5.  The unit commander initiated separation action because of the applicant's substandard performance and recommended he receive a general discharge.

6.  On 18 January 1977, the applicant acknowledged notification of his proposed discharge, voluntarily consented to discharge from the Army, and elected not to make a statement in his own behalf.  He was advised by counsel of the basis for this contemplated separation with a General Discharge Certificate and its effect and the rights available to him.

7.  On 26 January 1977, the separation authority approved the recommendation for separation and directed that the applicant be discharge under honorable conditions and furnished a General Discharge Certificate.


8.  Accordingly, the applicant was discharged on 8 February 1977 with a general discharge under the provisions of Army Regulation 635-200, paragraph 5-37, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  He had served 1 year and 12 days of total active service.

9.  There is no evidence of record which shows the applicant was diagnosed with any mental condition prior to his discharge.

10.  In support of his claim, the applicant provided three VA Forms 21-4142 authorizing several VA medical centers to release information on his treatment for depression, migraines, and an unspecified addiction.

11.  There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth 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.

13.  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.  Although the applicant contends he was suffering from severe depression at the time of his discharge, there is no evidence of record and the applicant provided no evidence which shows he was diagnosed with any mental condition prior to his discharge.  It appears he is currently being treated for depression, migraines, and an unspecified addiction by the VA.

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 that he might expect to encounter substantial prejudice in civilian life if issued a general discharge.

3.  The applicant's record of service included one nonjudicial punishment.  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 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.

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)                                         AR20100000150



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100000150



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1