BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100012302 


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 that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states that he served his country with honor, that all of his reviews were great, that he served as a radio operator and gunner and he was considered to be a good Soldier by his superiors.  However, his downfall was being overweight, which was hereditary.  He goes on to state it has been a problem all of his life but he felt honored to be in the Army and he died a little when he was discharged. 

3.  The applicant provides no additional documents with his records.

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 with a waiver of being 2 pounds overweight on 26 March 1976, for a period of 4 years, training as an infantryman, and a cash enlistment bonus.  He weighed 232 pounds at the time of enlistment and he was 71 3/4 inches tall. 

3.  He completed basic training at Fort Knox, Kentucky and was transferred to Fort Benning, Georgia to undergo advanced individual training (AIT) as a light weapons infantryman.  

4.  On 14 July 1976, while in AIT, he was presented a Certificate of Achievement for saving the life of another Soldier suffering from heat stroke by administering heart massage and mouth-to-mouth resuscitation on 13 July 1976.

5.  He completed his training and was transferred to Germany on 14 August 1976 for assignment to an infantry company in the Berlin Brigade.

6.  On 23 May 1977, the applicant underwent a separation physical/medical examination.  His height and weight were recorded as 73 inches and 242 pounds, respectively.  The examining physician recommended that he be placed in the weight control program.

7.  On 1 June 1977, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 5-37 and the Expeditious Discharge Program (EDP).  He cited the basis for his recommendation was that the applicant was unable to adapt socially and emotionally to the military way of life and that he could not work in a structured environment such as an infantry unit.  He further indicated the applicant had no disciplinary history and that he had been counseled on two occasions.  He advised the applicant that he was recommending that he be issued a General Discharge Certificate.

8.  The applicant voluntarily consented to the discharge and elected not to submit a statement in his own behalf.

9.  On 9 June 1977, the appropriate authority approved the recommendation for discharge and directed that the applicant be provided a General Discharge Certificate.

10.  Accordingly, he was discharged under honorable conditions on 6 June 1977 under the provisions of Army Regulation 635-200, paragraph 5-37 and the EDP.  He had served 1 year, 2 months, and 21 days of total active service.

11.  There is no evidence in the available records to show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  The Department of the Army began testing the Expeditious Discharge Program (EDP) in October 1973.  In a message dated 8 November 1974 the Deputy Chief of Staff for Personnel announced the expansion of the EDP.  The program provided for the separation of Soldiers whose acceptability, performance of duty, and/or potential for continued effective service fall below the standards required for retention in the Army.  Soldiers may be separated under this program when subjective evaluation of their commanders identifies them as lacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  Soldiers considered for separation under this expanded program had to agree to separation under this program.  Soldiers who did not agree to separation under this provision were not exempt from separation under another provision of the regulation.  An honorable or general discharge was required.

13.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  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.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative discharge was accomplished in accordance with applicable regulations with no violations of the applicant’s rights.  Accordingly, his discharge and the reasons therefore were appropriate under the circumstances.


2.  However, while a general discharge is authorized, it appears that in the applicant’s case a general discharge was unduly harsh under the circumstances as the evidence of record clearly shows the applicant had no disciplinary record and he had only been counseled twice.  

3.  The evidence of record also shows that less than a year before the applicant was discharged, he had been cited for saving the life of another Soldier while in AIT, which should be sufficiently mitigating to warrant an upgrade of his discharge to fully honorable given the circumstances surrounding his discharge, the lack of derogatory information, and the interest of justice.  

BOARD VOTE:

___x___  ____x____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  voiding the applicant's general discharge that was issued on 16 June 1977 under the provisions of Army Regulation 635-200, paragraph 5-37 and the EDP; and

   b.  issuing him an Honorable Discharge Certificate dated 16 June 1977 to replace the General Discharge Certificate now held by him.




      _______ _  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)                                         AR20100012302



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ABCMR Record of Proceedings (cont)                                         AR20100012302



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