IN THE CASE OF:	  

		BOARD DATE:	    21 April 2011

		DOCKET NUMBER:  AR20100025503


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 an upgrade of his under honorable conditions discharge to an honorable discharge.

2.  The applicant states:

	a.  the promises his recruiter made to him at the time of his enlistment were not kept, at 18 years of age he felt betrayed and lied to and he just wanted to get out of the Army;

	b.  he was told his discharge was the same as an honorable discharge, but after recently being denied certain benefits he found out that wasn't the case;

	c.  he was promised things by his recruiter that he took to heart; specifically, he wanted to be able to apply to the U.S. Military Academy so he could play football or, at the least, be allowed to play on an installation team;

	d.  he was told he could attend college classes as well, but when he got to his first duty station he was told he didn't have anything in writing and his unit was undermanned and too busy to let him play football or attend classes;

	f.  he requested an early release and after multiple instances of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), they finally approved his discharge; and

	g.  he was totally misled about everything.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and 15 letters of support/character references from family members, friends, co-workers, and other community associates.

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's available records show he enlisted in the Regular Army on 18 October 1978.  He completed training, was awarded military occupational specialty (MOS) 95B (Military Police), and was assigned to the Military Police Company, U.S. Army Garrison, Arlington Hall Station, Arlington, VA.  

3.  His DA Form 3286-25 (Statements for Enlistment – Part IV – U.S. Army Electronic Warfare/Cryptology Enlistment Option), an allied enlistment document, states, in pertinent part, in number 2 (Understanding):  Any other promise, representation or commitment made to me, orally or in writing, in connection with my enlistment is written below in my own handwriting or is hereby waived. (If none, write "NONE".)  The applicant affirmed this statement by entering, in his own writing, "None C.B."     

4.  On 27 August 1979, he accepted NJP under the provisions of Article 15, UCMJ, for refusing to go to his appointed place of duty on 24 August 1979.

5.  On 5 September 1979, he was reported by his unit as absent without leave (AWOL).  His records show he remained AWOL through 7 September 1979.

6.  On 1 October 1979, he was reported by his unit as AWOL.  His records show he remained AWOL through 7 October 1979.

7.  On 16 October 1979, he accepted NJP under the provisions of Article 15, UCMJ, for absenting himself without authority from his unit between 1 October 1979 and 7 October 1979.
8.  On 3 January 1980, he was reported by his unit as AWOL.  His records show he remained AWOL through 7 January 1980.

9.  On 1 February 1980, his commander notified him that he was being recommended for release from active duty and transfer to the U.S. Army Reserve Individual Ready Reserve or discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)).  As reasons for his proposed action, the commander cited:

* on 27 August 1979, he received NJP for refusing to go to his appointed place of duty
* on 12 September 1979, the suspended portion of the 27 August 1979 NJP was vacated due to his misconduct
* on 16 October 1979, he received NJP for absenting himself from his appointed place of duty for a period of 7 days
* on 1 February 1980, he received NJP for absenting himself from his appointed place of duty
* during the period 25 August 1979 to 15 January 1980, he refused to work within his MOS as a military policeman

10.  On 1 February 1980, he acknowledged with his signature that he had been notified of the basis for the contemplated separation action under the EDP and he voluntarily consented to the discharge.  He elected not to submit statements in his own behalf.  He acknowledged he understood he could withdraw his voluntary consent to the discharge any time prior to the date the discharge authority approved his discharge.  He further acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge were issued to him.

11.  On 4 and 5 February 1980, he consulted with an officer of the Judge Advocate General's Corps on matters concerning his discharge under the EDP.

12.  On 8 February 1980, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5, for failure to maintain acceptable standards for retention.  His DD Form 214 shows he completed 1 year, 3 months, and 7 days of net active service with 15 days of lost time.  Item 24 (Character of Service) of his DD Form 214 shows he received an under honorable conditions discharge.

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

14.  He provides 15 letters of support/character references from family members, friends, co-workers, and other community associates.  Each letter attests to his strength of character and professionalism in the performance of his duties.  None of the letters addresses his performance of military duty or the circumstances that led to his EDP discharge while on active duty.

15.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31 provided that members who completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated 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 could be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member could be separated under the EDP without his or her voluntary consent.  Soldiers discharged under the EDP were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel.  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.

16.  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.  The evidence of record does not support the applicant's request for an upgrade of his general under honorable conditions discharge.

2.  The U.S. Army does not now have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits a request for a change in discharge.

3.  His discharge proceedings were conducted in accordance with laws and regulations applicable at the time.  He voluntarily consented to separation under the EDP and he was fully aware his commander had recommended that he be issued a General Discharge Certificate.  The available documentation shows no evidence of an error in the processing of his discharge or the characterization of his service.

4.  With regard to promises made to him at the time of his enlistment, the evidence of record shows that no promises were recorded at the time of his enlistment.

5.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20090018593



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ABCMR Record of Proceedings (cont)                                         AR20100025503



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