IN THE CASE OF:	  

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100021862 


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 the discharge he received in 1980 was due to the injuries he sustained while on active duty and the general discharge he received was out of his control.

3.  The applicant provides no additional evidence in support of 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 enlisted in the Regular Army on 25 September 1979 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 63H (Automotive Repairman).

3.  On 29 February 1980, he was tried and found guilty by a summary court-marital of.

* one specification of failing to go at the time prescribed to his appointed place of duty
* unlawfully striking a private first class in the face with his fists
* two specifications of wrongfully having in his possession some quantity of marijuana

4.  The applicant’s commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program [EDP]), with a general discharge, characterized as under honorable conditions.  The commander stated the reasons for his proposed action were the applicant's lack of motivation, poor attitude, and inability to adjust to military life.

5.  The applicant was advised he had the right to decline this discharge, but if subsequent misconduct indicates that such action is warranted, he may be subjected to disciplinary or administrative separation procedures under other provisions of law or regulation.

6.  The applicant was further advised that if he received a general discharge he may expect to encounter substantial prejudice in civilian life.  The commander also advised the applicant:

* of his right to consult with an officer of the Judge Advocate General's Corps prior to completing his acknowledgements
* of his right to submit a statement in his own behalf
* he would not be permitted to apply for enlistment in the U.S. Army within 2 years from his date of separation

7.  The applicant acknowledged notification of the proposed discharge action and voluntarily consented to the discharge.  He did not submit statements in his own behalf.

8.  The appropriate authority approved the applicant’s separation under the provisions of Army Regulation 635-200, paragraph 5-31, and directed the issuance of a General Discharge Certificate.

9.  On 20 October 1980, the applicant was released from active duty under the provisions of Army Regulation 635-200, paragraph 5-31 with a general discharge.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  He completed
1 year and 26 days of total active service.

10.  The applicant's service medical health records were not available for review.

11.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31 of this regulation provided for the discharge of enlisted personnel who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  The regulation provided that no individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either a general or honorable discharge.

13.  Army Regulation 635-200, then in effect, provides that those Soldiers processed under the EDP may be released from active duty and transferred to the IRR to complete their military obligation if deemed to have the potential for service under conditions of full mobilization.  Soldiers deemed to have no potential for useful service under conditions of full mobilization were to be discharged.

14.  Army Regulation 635-200, paragraph 3-7a, states 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 service medical records were not available for review.  There is no indication in his Official Military Personnel File (OMPF) shows he was injured while he was on active duty.  

2.  Within 5 months of the date of his enlistment he was convicted by a summary court-martial for charges that were serious in nature.  Therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  Evidence shows he was properly and equitably discharged in accordance with regulations in effect at the time.  His commander notified him of the reasons 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 records contain no indication of procedural or other errors that would have jeopardized his rights.

4.  In view of the above, there is insufficient evidence on which to base an upgrade of the applicant's 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)                                         AR20100021862



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ABCMR Record of Proceedings (cont)                                         AR20100021862



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