IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100009935 


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, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD). 

2.  The applicant states he was told by the Criminal Investigative Division (CID) that if he helped with a case he would receive an early out.  He is now a senior citizen and deserves to receive what he was promised at the time.  

3.  The applicant provides a self-authored statement outlining the reasons his discharge should be upgraded 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's record shows that he enlisted in the Regular Army and entered active duty on 11 June 1973.  It further shows he trained in and was awarded military occupational specialty (MOS) 91B (Medical Specialist).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to specialist four/E-4 (SP4/E-4) on 6 November 1974, and that this is the highest rank he attained while serving on active duty.  His record documents no acts of valor or significant achievement.  

4.  The applicant's record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions.  It also shows he accrued 23 days of time lost during a period of being absent without leave (AWOL) from 9 through 31 March 1975. 

5.  On 19 March 1976, the unit commander notified the applicant of his intent to initiate action to separate him under the provisions of chapter 5, Army Regulation 635-200 (Expeditious Discharge Program (EDP)), with a GD.  The unit commander cited the applicant’s admission of his inability to socially or emotionally adjust to military life and the applicant’s consistently demonstrated inability to exercise the necessary self discipline required to make a worthwhile contribution to the needs of the Army as the basis for taking the action and of his right to submit a statement in his own behalf.  

6.  On 26 March 1976, the applicant acknowledged receipt of the notification of his proposed discharge under the EDP and voluntarily consented to the discharge.  He acknowledged his understanding that if he received a GD he could expect to encounter substantial prejudice in civilian life and that he had been afforded the opportunity to consult with legal counsel.  He further elected not to submit a statement in his own behalf. 

7.  On 26 March 1976, the separation authority approved the applicant’s separation under the provisions of the EDP, and directed the applicant receive a GD.  On 7 April 1976, the applicant was discharged accordingly.  

8.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant upon his discharge shows he was separated under the provisions of paragraph 5-37, Army Regulation 635-200 (EDP), after completing 2 years, 
9 months, and 5 days of creditable active military service and accruing 23 days of time lost due to AWOL.  

9.  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.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, 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 demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.  An HD or GD could be issued under this program.  

11.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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 to an HD because he was promised an early out if he assisted the CID has been carefully considered.  However, the evidence is not sufficient to support this claim.  

2.  The evidence of record confirms the applicant was properly notified by his unit commander of the initiation of action to separate him under the provisions of the EDP with a GD based on the applicant’s inability to socially or emotionally adjust to military life and to exercise the necessary self discipline required to make a worthwhile contribution to the Army.  The applicant was also advised of the consequences of such a discharge prior to voluntarily consenting to the discharge.  

3.  The applicant's separation was 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.  

4.  The applicant's record reveals a disciplinary history that clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, absent any evidence of error or injustice related to his separation processing, there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.  

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.




      _______ _   _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)                                         AR20100009935



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ABCMR Record of Proceedings (cont)                                         AR20100009935



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