IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100008747 


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 was a good Soldier for 2 years, 10 months, and 19 days of a 3-year enlistment
* that the Army suddenly decided to discharge him for failure to maintain acceptable standards for retention with just 43 days left on his enlistment really upset him
* his discharge has hindered him in job applications for veterans' preference

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 14 August 1979 for a period of 3 years.  He successfully completed one-station unit training in military occupational specialty 11B (infantryman).

3.  On 19 May 1980, nonjudicial punishment was imposed against the applicant for possessing marijuana.  His punishment consisted of extra duty and restriction.

4.  On 9 July 1980, 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 reduction to E-1, restriction, and a fine ($116.00).

5.  On 24 October 1980, nonjudicial punishment was imposed against the applicant for being drunk and disorderly.  His punishment consisted of a reduction to E-2 (suspended), a forfeiture of pay, and extra duty.

6.  On 20 February 1981, a bar to reenlistment was imposed against the applicant.

7.  Between 10 November 1981 and 16 May 1982, the applicant was counseled on numerous occasions for various infractions which included abusing government property, poor performance, disrespect, security violation, failure to make his bed, failure to shave, dirty gear, failure to obey, and failure to repair.

8.  On 2 June 1982, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-31, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  The unit commander recommended separation with a general discharge and cited:

* the applicant's poor attitude
* the applicant's failure to follow orders
* the applicant's continued poor appearance

9.  On 8 June 1982, the applicant acknowledged notification of his proposed discharge 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.

10.  On 15 June 1982, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

11.  Accordingly, the applicant was discharged on 2 July 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 2 years, 10 months, and 19 days of total active service.

12.  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. 

13.  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.  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.

14.  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 Board does not upgrade a discharge for the purpose of enhancing employment opportunities.

2.  The applicant's record of service included numerous counseling statements for various infractions, a bar to reenlistment, and three nonjudicial punishments.  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.

3.  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.

4.  The type of discharge directed and the reasons were therefore 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)                                         AR20100008747



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ABCMR Record of Proceedings (cont)                                         AR20100008747



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