IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100008353 


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 that his discharge should be upgraded because he had served over 5 1/2 years of service and only had one incident that caused him mental anguish and problems.

3.  The applicant provides no additional documentary evidence in support of this case.

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.  On 4 April 1974, the applicant enlisted in the Regular Army with 4 years and 7 months of prior honorable active and inactive service.  The applicant's military occupational specialty (MOS) for this period of service was 64C (Motor Transport Operator).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  On 19 March 1975, the unit commander notified the applicant of his intent to initiate action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program (EDP)), with a general discharge (GD).  The unit commander cited the applicant’s nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from a noncommissioned officer (NCO) and nine counseling sessions for reasons including personal problems, military police report, attitude, disrespect to an NCO, and personal conduct as the reasons for initiating the action.

4.  The applicant acknowledged receipt of this notification and indicated that he was voluntarily consenting to the discharge.  He further acknowledged that he was advised of the reasons for the contemplated separation action with a General Discharge Certificate, its effects, and of the rights available to him.  The applicant also elected not to make a statement in his own behalf.

5.  On 21 March 1975, the separation authority approved the applicant’s separation under the provisions Army Regulation 635-200, paragraph 5-37 and directed the issuance of a General Discharge Certificate.  On 8 April 1975, the applicant was discharged accordingly.

6.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant upon his separation confirms he was separated under the provisions of, Army Regulation 635-200, paragraph 5-37.  This form further show the applicant completed 1 year and 5 days of net active service this period.

7.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  

8.  Army Regulation 635-200 set forth basic authority for the separation of enlisted personnel.  Paragraph 5-37, 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 have completed at least 6 months but not more than 36 months of continuous active duty and who demonstrated that 

they could not or would not meet acceptable standards required of enlisted personnel because of existence of one or more of the following conditions:

* failure to respond to counseling
* poor attitude. 
* lack of motivation. 
* lack of self-discipline. 
* inability to adapt socially or emotionally. 
* failure to demonstrate promotion potential. 

No member will be given a character of service of under honorable conditions by the separation authority unless it was recommended by the commander initiating the recommendation for separation.  However, separation authorities may award an honorable character of service if an under honorable conditions character of service is recommended by the initiating commander.

9.  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 applicant’s contentions that his discharge should be upgraded because he had served more than 5 years of service and he had only one incident that caused him mental anguish and problems were carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record clearly shows that the applicant received credit for the two periods of honorable service in which he received Honorable Discharge Certificates.  However, the period of service under review confirms that the applicant was properly notified by his unit commander that he was initiating action to separate him under the provisions of the EDP with a GD based on the applicant’s substandard performance and record of misconduct.  The applicant was also advised of the consequences of such a discharge prior to voluntarily consenting to the discharge.  These actions were accomplished in accordance with the applicable regulation.  All requirements of law and regulation met and the applicant’s rights were fully protected throughout the separation process.

3.  The applicant's record reveals a disciplinary history that clearly diminished the overall quality of his service below that meriting an honorable discharge.  As a result, 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.  Based on the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100008353



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)