IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100023316 


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 his general discharge be upgraded to honorable.

2.  The applicant states he was told his discharge could be overturned.

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 26 June 1974 for a period of 3 years.  He completed training and was awarded military occupational specialty 57H (terminal operations specialist).

3.  Between 5 February 1975 and 19 May 1976, nonjudicial punishment (NJP) was imposed against the applicant on five separate occasions for:

* absenting himself from his unit for 1 day (two specifications)
* stealing cigarettes
* failing to go at the time prescribed to his appointed place of duty (two specifications)
* absenting himself from his appointed place of duty

4.  On 28 June 1976, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37, under the Expeditious Discharge Program.  The unit commander recommended a general discharge.  The unit commander's reasons for his proposed action were the following:

* clearly substandard performance
* lack of cooperation with peers or superiors
* not reliable to be present for duty or complete a task
* inability to accept instructions or directions
* inability to take care of his financial responsibilities
* failure to show proper motivation

5.  On 1 July 1976, he acknowledged notification of his proposed discharge, voluntarily consented to discharge from the Army, and elected not to make a statement in his own behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if issued a general discharge and that he had been provided an opportunity to consult with counsel.

6.  On 2 July 1976, the separation authority approved the recommendation for separation and directed that the applicant be discharged under honorable conditions and furnished a General Discharge Certificate.

7.  He was separated on 7 July 1976 with a general discharge under the provisions of Army Regulation 635-200, paragraph 5-37, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  He completed 2 years and 4 days of total active service.

8.  There is no evidence in the available records that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  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 or 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.

10.  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.  His separation under the Expeditious Discharge Program was voluntary and the evidence shows he voluntarily consented to the discharge.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if issued a general discharge.

2.  His record of service included five NJP's and 8 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an honorable discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.



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)                                         AR20100023316



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ABCMR Record of Proceedings (cont)                                         AR20100023316



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