IN THE CASE OF:	  

		BOARD DATE:	  6 January 2011

		DOCKET NUMBER:  AR20100018074 


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 an honorable discharge with a more favorable reason for separation.

2.  The applicant states that his commander and he were in a vehicle accident and the commander deemed it his fault and imposed nonjudicial punishment against him.  He goes on to state that he requested a transfer and his commander denied it.  He further states that he discovered that his enlistment contract provided that he serve 2 years overseas and 2 years in the States but by the time he got on levy overseas he would have had to extend his enlistment and he refused to do so and the commander gave him an early-out; however, it was not until later that he realized what his commander did to him.

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

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 had prior enlisted service in the Oklahoma Army National Guard when he enlisted in the Regular Army in Phoenix, Arizona on 24 January 1980 for a period of 4 years and assignment to the 9th Infantry Division, Fort Lewis, Washington.  On 25 January 1980, he waived his enlistment commitment for assignment to the 9th Infantry Division and understood he would therefore be assigned in accordance with the needs of the service.  He was immediately assigned to a transportation company at Fort Lewis for duty as a vehicle driver.

3.  On 3 October 1980, nonjudicial punishment was imposed against him for failure to repair.

4.  On 9 February 1981, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 9 December to 11 December 1980.

5.  On 10 February 1981, the commander initiated action to bar him from reenlistment.  He cited as the basis for his recommendation the applicant’s disciplinary record, his repeated failure to pay just debts, and contended that the applicant was a shirker who performed his duties in a substandard manner.  The applicant elected not to make a statement in his own behalf and the bar to reenlistment was approved on 11 March 1981.

6.  On 28 May 1981, 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 5-31 and the Expeditious Discharge Program (EDP).  He cited as the basis for his recommendation the applicant’s lack of motivation and self discipline, his poor attitude and failure to demonstrate promotion potential.  He advised the applicant that he was recommending that he be discharged under honorable conditions.

7.  The applicant voluntarily consented to the discharge and elected not to submit a statement in his own behalf.  He also acknowledged that he understood that if his discharge was characterized under honorable conditions he could expect to encounter substantial prejudice in civilian life and that he had been provided an opportunity to consult with an officer of the Judge Advocate General’s Corps.  He also acknowledged that he understood that there was no automatic upgrading or review by any government agency of a characterization of service which is under honorable conditions and that he must apply to the Army Discharge Review Board or this Board for a review of his characterization of service.

8.  The appropriate authority approved the recommendation for discharge on 2 June 1981 and directed that he be furnished a General Discharge Certificate.

9.  Accordingly, he was discharged under honorable conditions on 8 June 1981 under the provisions of Army Regulation 635-200, paragraph 5-31h(2) and the EDP due to failure to maintain acceptable standards for retention.  He had served 1 year, 4 months, and 13 days of total active service.

10.  On 3 May 1987, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that his enlistment contract had not been honored because he was not sent overseas and that he was unaware of the discharge he was receiving.  On 28 March 1988, the ADRB determined that his discharge was both proper and equitable and denied his request for an upgrade of his discharge.

11.  A review of his enlistment contract reveals that all conditions of his contract were met by the Department.  There were no provisions in his contract which promised that the applicant would be sent overseas. 

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.

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.  The applicant’s contention that his enlistment contract was not fulfilled by the Department because he was not sent overseas and that he did not understand his discharge has been noted and found to lack merit.  All provisions of his contract were met by the government and the applicant clearly indicated he understood the discharge he was receiving and he consented to the discharge.

3.  Therefore, he has failed to show through the evidence of record that his discharge or the reasons therefore were improper and given his undistinguished record of service during such a short period of service there appears to be no basis to grant his request.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100018074





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ABCMR Record of Proceedings (cont)                                         AR20100018074



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