BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100015573 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states he was wrongfully discharged with less than 30 days left on his 3-year enlistment.  He goes on to state that he was struck by a sergeant during a verbal disagreement and he defended himself; however another sergeant walked into the room and saw the end of the fight and told him that he would be court-martialed for striking a noncommissioned officer (NCO), so he was left with no other option than to request a chapter 5 discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 in Los Angeles, CA on 18 May 1977 for a period of 3 years.  He completed basic combat and advanced individual training as a Pershing Missile Crewman at Fort Sill, OK and he remained at this location until he was transferred to Germany on 2 April 1979.

3.  On 17 March 1980 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 (Personnel Separations - Enlisted Personnel), chapter 5 and the Expeditious Discharge Program (EDP).  He cited as the basis for his recommendation that the applicant:

* consistently failed to meet the standards of discipline required of a Soldier
* always performed his duties only if he wanted to rather than because he was directed to
* had a poor attitude and insolent demeanor
* had a contemptful and argumentative relationship with superiors and when he could manage it, he would bait or provoke them
* had no idea of the meaning of discipline or self-discipline
* had more counseling sessions with every supervisor than anyone in the unit and that he had been given more chances than anyone
* had blatant contempt for authority
* had an attitude that was prejudicial to good order and discipline that was not subject to change

4.  The commander also made mention of the fact that it appeared the applicant’s records had been tampered with because all records of nonjudicial punishment (three) had been removed.

5.  The applicant acknowledged receipt of the notification of discharge and voluntarily consented to be discharged.  He also acknowledged that he had been afforded the opportunity to consult with counsel and elected not to submit a statement in his own behalf.

6.  The appropriate authority approved the recommendation for discharge and directed the issuance of General Discharge Certificate.


7.  Accordingly, he was discharged with a general discharge on 1 April 1980 under the provisions of Army Regulation 635-200, chapter 5 and the EDP due to failure to maintain acceptable standards for retention.  He had served 2 years, 10 months, and 12 days of total active service.

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

9.  The Department of the Army began testing the 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 could 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 had to consent to separation under this program in order for commanders to separate them under the EDP.  Otherwise, a commander was required to separate Soldiers under other provisions of the regulation which in most cases resulted in an under other than honorable conditions 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’s contentions were carefully considered; however, they are not supported by either the evidence submitted with his application or the evidence of record.  He was properly notified of the commander’s intent to recommend his separation.  He was required to consent to the separation before the recommendation could be processed further.  The applicant consented to the separation under the EDP and elected not to submit matters in his own behalf.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  In view of the foregoing, there is no basis for granting the applicant's request

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)                                         AR20100015573



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ABCMR Record of Proceedings (cont)                                         AR20100015573



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