IN THE CASE OF:
BOARD DATE: 2 June 2011
DOCKET NUMBER: AR20100027034
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 (GD) be upgraded to an honorable discharge (HD).
2. The applicant states he has a "misconduct discharge."
3. The applicant provides no additional documentation.
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 applicants 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 applicants 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 for 3 years on 13 February 1976. Following his initial entry training he was awarded military occupational specialty (MOS) 15J (Lance/Honest John Operations Fire Direction Assistant). His first permanent duty assignment was Fort Sill, OK.
3. At Fort Sill, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for wearing an unserviceable uniform and having untrimmed sideburns. He received punishment consisting of:
* a reduction to private (PV2)/E-2 (suspended 180 days)
* a forfeiture of $90 pay for 1 month ($40 suspended for 180 days)
* 14 days of restriction and extra duty
4. On an unknown date, the suspended portion of the above NJP was vacated. The unexecuted portion of the punishment was imposed.
5. The applicant was assigned to Korea in June 1977; he arrived in-country on or about 8 August 1977. On 28 November 1977, the applicant received NJP for willfully disobeying the lawful order of a non-commissioned officer. He received punishment consisting of a:
* reduction to private (PV1)/E-1
* forfeiture of $109 pay for 1 month
6. The applicant's discharge packet is not contained in his DA Form 201 (Military Personnel Records Jacket). The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade. The ADRB proceedings show that on 8 December 1977, the applicant's commander notified him he was initiating administrative separation action against him under the provisions of paragraph 5-37, Army Regulation 635-200, Expeditious Discharge Program (EDP), with a GD. The applicant acknowledged notification and consented to discharge. On 9 December 1977, the approving authority approved the administrative separation action and the applicant was issued a GD on
30 December 1977.
7. The ADRB denied his request for an upgrade on 31 July 1981.
8. Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel. Paragraph 5-37, then in effect, provided for the EDP. This program provided for the discharge of individuals who had completed at least 6 months, but less than 36 months of active service and who demonstrated by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential that they could not or would not meet acceptable standards. Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a GD had to be initiated by the immediate commander and the individual had to consult with legal counsel.
9. Army Regulation 635-200, paragraph 3-7a, states 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 members 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 requests his GD be upgrade to an HD.
2. The applicant, by his conduct, demonstrated a poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and or failure to demonstrate promotion potential such that he could not or would not meet acceptable standards. His commander properly processed him for discharge under the EDP and his service is appropriately characterized as under honorable conditions (GD).
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) AR20100027034
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ABCMR Record of Proceedings (cont) AR20100027034
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