IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100011680 


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 correction of his DD Form 214 (Report of Separation from Active Duty) to show he received an honorable discharge.

2.  The applicant states he has a letter from the Department of Veterans Affairs (VA) stating his character of discharge is honorable but his DD Form 214 shows under honorable conditions.

3.  The applicant provides a copy of his DD Form 214 and a letter from 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's record shows he enlisted in the Regular Army on 17 June 1975.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2. 

3.  Item 9 (Awards, Decorations & Campaigns) of his DA Form 2-1 (Personnel Qualification Record) shows he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  His record reveals a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) as follows:

* On 12 August 1972 and 7 July 1975, for disobeyin g a lawful order
* On 20 January 1976, for wrongfully communicating a threat
* On 3 March 1976, for leaving his guard post without authority
* On 10 March 1976, for willfully disobeying a lawful order and disrespecting a noncommissioned officer

5.  On 18 May 1976, at Fort Lewis, WA, he pled guilty at a special court-martial (SPCM) to one specification of wrongfully appropriating the property of another Soldier and one specification of failing to obey a lawful order.  The court sentenced him to a forfeiture of $220.00 pay and confinement at hard labor for 3 weeks.  The sentence was adjudged on 19 May 1976 and the convening authority approved it on 25 May 1976.

6.  On 1 October 1976, he was notified by his commander that discharge action was being initiated against him under Army Regulation 635-200 (Personnel Separations) for failure to meet acceptable standards for continued military service.  The immediate commander recommended approval with a general discharge.

7.  On 5 October 1976, he acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, the possible effects of a general under honorable conditions discharge, and of the procedures and rights that were available to him.  He voluntarily consented to this discharge.  He further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.  He also elected not to submit a statement in his own behalf.

8.  On 5 October 1976, the separation authority approved his discharge under Army Regulation 635-200, paragraph 5-37 for failure to meet acceptable standards for continued military service with a DD Form 257A (General Discharge Certificate).  On 8 October 1976, he was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of  1 year, 2 months, and 4 days of creditable active service with 47 days of time lost.

9.  He provides a VA letter, dated 30 May 2008, that in part states his record shows he served in the Armed Forces of the United States and his character of discharge is honorable.

10.  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 under the EDP (Expeditious Discharge Program).  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.

11.  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 contention that his DD Form 214 should be corrected to show he received an honorable discharge was carefully considered and it was determined that there is insufficient evidence to support this contention.  

2.  The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel as evidenced by acceptance of NJP on five occasions and conviction by an SPCM on another because of his inability to adapt socially or emotionally.  Accordingly, his immediate commander initiated separation action against him.  

3.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation therefore were appropriate considering all the facts of the case.  Based on his overall record, the applicant's service does not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  The VA operates under different laws and its own policies.  Therefore, the VA's determination has no bearing on the Army.  The applicant's DD Form 214 correctly show his character of service was under honorable conditions and he has provided no evidence it is in error or unjust.

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)                                         AR20100011680



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ABCMR Record of Proceedings (cont)                                         AR20100011680



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