IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100018489 


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 reconsideration of his previous application for amendment of his DD Form 214 (Report of Separation from Active Duty) to upgrade his general discharge under honorable conditions to an honorable discharge.

2.  He states he is currently receiving disability and has a waiver on file. His recruiter's inappropriate relationship with his [the applicant's] wife caused this injustice.

3.  He provided:

* a certified copy of his divorce decree, filed on 17 December 1975
* a copy of a letter from a U.S. Senator, dated 22 April 2009
* a copy of a Department of Veterans Affairs (VA) Form 21-4142 (Authorization and Consent to Release Information to the VA), dated 6 June 2010
* copies of two VA Forms 21-4138 (Statement in Support of Claim), dated 6 and 22 June 2010, respectively

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090008182 on 15 October 2009.  In his original application, he contended his recruiter had an inappropriate relationship with his wife after he departed for training.  Due to the circumstances, he was promised an honorable discharge by his chain of command.  The Board concluded:

	a.  His record did not contain any evidence and he did not provide any substantiating evidence which showed his recruiter had an inappropriate relationship with his wife or that he would receive an honorable discharge.

	b.  He voluntarily consented to be discharged under the provisions of chapter 5 (Expeditious Discharge Program (EDP)) of Army Regulation 635-200 (Personnel Separations).

	c.  His separation and the reason for separation were appropriate, his rights were protected, and there was no indication of procedural error.

	d.  His record of service showed he displayed an inability to adjust to the regimentation of military life and therefore he was not entitled to an upgrade of his discharge.

2.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in Item 35 (Record of Assignments):

* he enlisted in the Regular Army on 14 August 1975
* he completed basic combat training (BCT) and advanced individual training (AIT) on 8 November 1975 and was awarded military occupational specialty 11B (Infantryman)
* he was assigned to Combat Support Company, 2nd Battalion, 7th Cavalry Regiment, 1st Cavalry Division, Fort Hood, TX, on 26 November 1975

3.  He submitted a copy of his divorce decree that lists him as the defendant in the case.  He and the plaintiff [his wife] were married on 19 December 1973 and lived together as husband and wife until their separation on 14 October 1975.

4.  The divorce decree also indicated he had just grounds for divorce as alleged in his counterclaim.  The court found all issues in favor of the defendant and noted the cause for divorce occurred within the State of Arkansas.  The specific reason was not stated.  As a result, he and his wife were divorced on 17 December 1975.

5.  His record documents no acts of valor, significant achievement, or service warranting special recognition and it does not contain any evidence of nonjudicial punishment.  The events which led to his chain of command's decision to separate him under the EDP are not available for review by this Board.  However, on 15 March 1976 his company commander notified him of his intent to separate him under the provisions of chapter 5, Army Regulation 635-200, due to his poor attitude, lack of motivation, inability to adapt emotionally, and his hostility towards the Army.  This document showed the commander's intent was to recommend he be given a general discharge.

6.  His record also shows he consulted with legal counsel and was advised of the basis for the contemplated separation from the Army and the possible effects of a general discharge.  He voluntarily consented to the separation action and declined to submit a personal statement on his own behalf.

7.  The separation authority approved his discharge and directed he be furnished a General Discharge Certificate.  His DD Form 214 shows he was discharged on 9 April 1976 under the provisions of paragraph 5-37 of Army Regulation 635-200 and was issued a general discharge under honorable conditions.

8.  There is no evidence in the available record to show he applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

9.  He provided copies of two VA Forms 21-4138.  These forms state he did not have a problem with ringing in his ears and trouble hearing prior to his enlistment in the service.  He also has problems with depression, carpal tunnel syndrome, and hypertension.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, then in effect, provided the policy and outlined the procedures for separating individuals under the EDP.  The EDP provided for the separation of Soldiers who failed to demonstrate they could or would meet acceptable standards required of enlisted personnel.  Either an honorable discharge or general discharge could be issued under this program.

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.  Notwithstanding the new evidence he submitted that showed the court found all issues in his favor and granted him a divorce on 17 December 1975, there is a presumption of regularity that his chain of command's decision to separate him under the provisions of chapter 5 of Army Regulation 635-200 was both fair and accurate.  He was given the opportunity to submit a statement at the time he met with legal counsel; however, he chose not to do so.

2.  He was properly notified his chain of command recommended that he receive a general discharge and he was advised of the consequences prior to voluntarily consenting to the discharge.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  His record does not support 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090008182, dated 15 October 2009.



      __________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)                                         AR20100018489



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ABCMR Record of Proceedings (cont)                                         AR20100018489



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