IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100023623 


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.  He states, in effect, he served honorably and he has letters and awards that show this. 

3.  He provided:

* a certificate of achievement
* several letters of appreciation and commendation
* his DD Form 214 (Report of Separation from Active Duty)
* a DD Form 257A (General Discharge Certificate)

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 30 December 1975.  After the completion of training, he served in military occupational specialty 11C (Infantry Indirect Fire Crewman).

3.  His record contains Headquarters, 3rd Battalion, 5th Infantry, Summary Court-Martial Order Number 30, issued on 24 August 1977.  This order shows that pursuant to his plea, he was found guilty of being absent without leave (AWOL) from 1 May to 8 June 1977.

4.  His record also shows he received three counseling statements between 
24 August and 2 September 1977 for failing to repair and for missing formation.

5.  A DA Form 3822-R-1 (Report of Mental Status Evaluation) shows he underwent a mental status evaluation and he was determined to be:

* mentally responsible
* able to distinguish right from wrong
* able to adhere to the right
* mentally capable to understand and participate in board proceedings
* within the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3

6.  On 18 September 1977, his immediate commander notified him of his intent to initiate action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 5, under the Expeditious Discharge Program (EDP).  The commander stated several reasons for this action, specifically, his:

* poor attitude
* inability to adapt emotionally
* failure to demonstrate promotion potential
* quitter attitude
* inability to accept instructions and directions
* lack of cooperation with peers and superiors

7.  The commander also informed him that he intended to recommend he receive a General Discharge Certificate and advised him of his rights to consult with legal 


counsel to discuss the ramifications of this recommendation and to submit a statement in his own behalf, to decline the discharge, or to waive any of the aforementioned rights.  He was also informed that issuance of a less than honorable discharge could preclude his eligibility for many or all veteran's benefits and he could expect to encounter substantial prejudice in civilian life.  

8.  On 19 September 1977, he acknowledged receipt of the commander’s notification of intent to separate him under the provisions of the EDP.  He consulted with legal counsel and was advised of the basis for the contemplated separation from the Army under the provisions of Army Regulation 635-200, chapter 5, the effect on his future enlistment in the Army, the possible effects of a general discharge and of the procedures and rights that were available to him.  The applicant voluntarily consented to this separation action.  He acknowledged he understood that if he were issued a general discharge he could expect to encounter substantial prejudice in civilian life.  He also declined to submit a statement in his own behalf.

9.  On 29 September 1977, the separation authority approved his discharge from the service for failing to meet acceptable military standards.  He directed the issuance of a General Discharge Certificate.

10.  Accordingly, he was discharged on 11 October 1977.  The DD Form 214 he was issued at the time shows he completed a total of 1 year, 8 months, and 5 days of total active service; 25 days of prior inactive service; and had 37 days of time lost.

11.  He provided a certificate of achievement that shows he distinguished himself on 19 October 1976 by his continuous outstanding performance of duty as a vehicle driver for Company B, 3rd Battalion, 5th Infantry.  

12.  He also provided several letters of appreciation and commendation.  These letters show, in pertinent part, that from 23 August to 1 November 1976, he was recognized for:

* outstanding performance in the motor pool
* demonstrating a high degree of knowledge and dedication to duty
* serving as an example worthy of evaluation
* receiving recognition for Best Driver of the Month on 12 October 1976
* setting and maintained high standards


13.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph Army Regulation 635-200, 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 failing to demonstrate promotion potential may be discharged under the EDP.  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.

15.  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 record reveals a disciplinary history that includes:

* counseling statements for failing to repair and missing formation
* summary court-martial for being AWOL

2.  The evidence of record shows he voluntarily consented to be discharged under the EDP.  His discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Considering all the facts of the case, the type of discharge directed and the reason for separation were appropriate.

3.  Notwithstanding his certificate of achievement and his letters of appreciation; his record of service shows he displayed a poor attitude; inability to adapt emotionally; failing to demonstrate promotion potential; quitter attitude; inability to accept instructions and directions and his lack of cooperation with peers and 


superiors.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct or performance of duty for Army personnel.  Therefore, he is not entitled to 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 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)                                         AR20100023623



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ABCMR Record of Proceedings (cont)                                         AR20100023623



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