IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100016223 


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 an upgrade of his general discharge. 

2.  The applicant states, in effect, his discharge should be upgraded.

3.  The applicant did not provide any additional evidence.

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 records show he enlisted in the Regular Army on 17 October 1977 and held military occupational specialty 05B (Radio Operator).  The highest rank/grade he attained during his military service was private first class/E-3.  He was assigned to the 2nd Battalion, 62nd Air Defense Artillery, Germany.

3.  The evidence shows the applicant served in Germany from August 1978 to October 1980.  His awards and decorations include the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars and the Marksman Marksmanship Qualification Badge with Pistol Bar.

4.  His records further show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 6 February 1978, for being absent without leave (AWOL) from 5 to 6 February 1978
* 13 February 1978, for being AWOL from 8 to 10 February 1978
* 16 February 1978, for violating a lawful general order
* 23 March 1979, for being AWOL from 21 to 26 February 1979
* 27 April 1979, for wrongfully possessing marijuana 

5.  On 24 April 1979, his immediate commander advised him that he intended to initiate action to discharge him from the Army under the provisions of paragraph 5-31 (Expeditious Discharge Program (EDP)) of Army Regulation 635-200 (Personnel Separations) by reason of poor attitude, lack of motivation, lack of self-discipline, and failure to demonstrate promotion potential.  He recommended a general discharge.

6.  On 24 April 1979, the applicant acknowledged notification of the proposed separation action and consulted with legal counsel.  He was advised of the basis for the contemplated separation action under the provisions of paragraph 5-31, Army Regulation 635-200, the effect on future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  He voluntarily consented to this separation action and declined to make a statement in his own behalf.  He further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.

7.  On 26 April 1979, the applicant's immediate commander initiated separation action against him under the EDP.  The immediate commander stated the applicant had received NJP on four different occasions and had been counseled on 10 different occasions.  He had failed to demonstrate any promotion potential and his discharge was for the betterment of the service.

8.  On 4 May 1979, the separation authority approved the applicant's discharge action and directed that he be issued a General Discharge Certificate.  On 24 May 1979, he was accordingly discharged.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he completed a total of 1 year, 7 months, and 1 day of creditable active military service and he had 7 days of lost time.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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.  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 available evidence shows he continuously displayed a lack of self-discipline and an inability to conform to military rules as evidenced by several instances of NJP and/or negative counseling.  Accordingly, his chain of command initiated separation action against him and he voluntarily consented to discharge under the EDP.  His separation action 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 were appropriate considering all the facts of the case.

2.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

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)                                         AR20100016223



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ABCMR Record of Proceedings (cont)                                         AR20100016223



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