IN THE CASE OF:	   

		BOARD DATE:	    21 December 2010

		DOCKET NUMBER:  AR20100016275


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 served his country with honor and distinction.  Toward the end of his service he injured his kneecap and was placed in a full-leg cast for a period of 3 months.  His new platoon sergeant didn't like this and made his next 6 months a "living hell."  When offered a discharge, he accepted, believing the pressure would be impossible if he declined.

3.  The applicant provided no 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 record shows he enlisted in the Regular Army on 28 November 1978.  He attended one-station unit training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  On 27 February 1980, he received nonjudicial punishment for being absent without leave from 19 January 1980 to 18 February 1980.

4.  On 4 December 1980, he injured his knee falling off the top bunk in his room, as indicated by a DA Form 2173 (Statement of Medical Examination and Duty Status).  On 3 February 1981, the approval authority reviewed the DA Form 2173 and found the injury to be "in line of duty."  There is no indication in the available record regarding the severity of the injury or the prognosis for treatment.

5.  His record contains numerous hand-written statements from members of his chain of command summarizing his previous actions and counseling.  

6.  He was notified he was being recommended for release from active duty and transfer to the Individual Ready Reserve or discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31, the Expeditious Discharge Program (EDP).  As reasons for his proposed action, the commander cited the applicant's:

* repeated failure to follow instructions in spite of counseling
* not performing work to specified standards
* missing formations
* sleeping on duty

7.  On 26 June 1981, he acknowledged with his signature that he had been notified of the basis for the contemplated separation action under the EDP and he voluntarily consented to the discharge.  The applicant acknowledged he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps and that he elected not to submit statements in his own behalf.  He also acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge was issued to him.  He further acknowledged he understood he could withdraw his voluntary consent to the discharge any time prior to the date the discharge authority approved his discharge.

8.  The appropriate authority approved the recommendation for discharge on 8 July 1981.  On 3 August 1981, he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31h(2), under the EDP due to failure to maintain acceptable standards for retention.  He completed 2 years, 2 months, and 7 days of active service during this period and was issued a General Discharge Certificate.  His characterization of service was under honorable conditions.

9.  His service medical record was not available for review.

10.  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.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  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.  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.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his general discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  There is no evidence in the available record to indicate he was treated unfairly or improperly by members of his chain of command.  On the contrary, the evidence suggests his chain of command actively counseled him to overcome various deficiencies.

3.  He was properly and equitably discharged in accordance with regulations in effect at the time.  His commander notified him of the reasons for and the type of discharge the commander was recommending.  He voluntarily consented to the proposed discharge.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.

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 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)                                         AR20090020752



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ABCMR Record of Proceedings (cont)                                         AR20100016275



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