IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100014573 


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, in effect, the reason for his discharge be changed and his general, under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, he was discharged for failure to maintain acceptable standards but he never got a bad review, never fell behind, and never received a letter for unacceptable standards.

3.  The applicant provides a copy of his driver's license and social security card.

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 29 May 1979.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 13B (Cannon Crewman).

3.  His records show he was counseled on 17 September 1979 and on at least three other occasions for various reasons including the following:

* Sleeping in the motor pool while on duty
* Not shaving prior to morning formation
* Failure to maintain his appearance
* Failure to follow instructions and orders 

4.  On 10 December 1979, his immediate commander advised him that he intended to recommend his discharge from the Army under the provisions of paragraph 5-31 (Expeditious Discharge Program) of Army Regulation 635-200 (Personnel Separations) by reason of his inability to adapt emotionally to military life.

5. On 11 December 1979, he received a psychiatric evaluation at the mental health clinic and was diagnosed as having "Adjustment Reaction of Adult Life." He was found to have "no evidence of a medically disqualifying psychiatric condition that would indicate disposition through medical channels."

6.  On 12 December 1979, he acknowledged notification of his proposed discharge from the Army and 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 and the rights available to him.  He also declined to submit a statement on his own behalf.

7.  On 27 December 1979, his immediate commander initiated separation action against him under the provisions of paragraph 5-31 of Army Regulation 635-200.  The commander cited his inability to accept instructions, his substandard performance, and his lack of cooperation with peers and superiors.  The commander recommended a General Discharge Certificate.

8.  On 2 January 1980, the separation authority approved his discharge and directed that he receive a General Discharge Certificate.  On 15 January 1980, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 7 months and 16 days of creditable active military service.  Item 28 (Narrative Reason for Separation) of this form shows the entry "Failure to maintain acceptable standards."
9.  Army Regulation 635-200, in effect at the time, set for 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 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.

10.  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 contends the narrative reason for his separation should be changed and his discharge should be upgraded to honorable.

2.  The evidence of record shows he voluntarily consented to his discharge under the Expeditious Discharge Program.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  His general discharge was based on the fact that he was separated under the provisions of paragraph 5-31 of Army Regulation 635-200 by reason of his inability to adjust to military life.  Therefore, the narrative reason for separation was appropriate.

3.  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.  Therefore, the type of discharge directed was 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)                                         AR20100014573





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ABCMR Record of Proceedings (cont)                                         AR20100014573



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