IN THE CASE OF:	  

		BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100027254 


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 that he did not know he could request to have his discharge upgraded.  He states at the time of his enlistment he was young and made some mistakes in judgment.  He states his problems started after his time in Vietnam.  At that time, he did not want to make the Army a career and wanted to get started with life back home.  He states he applied for a qualitative management type discharge knowing he could receive a general discharge.  He is now a grown man, happily married, a retired Teamster for over 32 years, and has two grown children.  He would like to clear his record.

3.  The applicant did not provide any documents 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 was born on 28 April 1952 and he enlisted in the Regular Army on 30 July 1970 for a period of 3 years at the age of 18 years, 3 months, and 3 days.  He completed his initial entry training and he was awarded military occupational specialty 12A (Pioneer).
 
3.  The applicant's disciplinary history includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) as follows:

* on 9 June 1971 for disobeying the lawful order from a superior noncommissioned officer (NCO); punishment was reduction to private (PV2)/E-2
* on 29 June 1971 for absenting himself from his place of duty without proper authority; punishment was a forfeiture of $25.00 per month for one month
* on 20 June 1972 for operating a motorcycle in a reckless manner and for violating a lawful regulation by operating an unregistered and uninsured motorcycle; punishment was reduction to private first class (PFC)/E-3 (suspended), forfeiture of $70.00 per month for one month, restriction to the company area for 7 days

4.  On 21 July 1972, he was hospitalized and diagnosed with reactive depression, multiple interpersonal conflicts, and premorbid personality based on the stresses of routine military duty and his punishment for his absence from his place of duty offense.  He showed improvement during his hospitalization and his degree of impairment for continued military duty was defined as mild.  

5.  On 14 August 1972, he was discharged from the military hospital and he was placed on convalescent leave for 14 days.  His hospital discharge instructions were to follow up and continue with outpatient psychiatric care.  His treating physician stated that if the applicant is unable to function adequately in the military, administrative separation from the service should be considered.

6.  On 29 August 1972, he received a temporary physical profile of T-3 for his psychiatric condition and he was returned to duty with temporary assignment limitations.  The treating physician determined the applicant's condition was 


temporary and directed he report to a medical facility on 29 November 1972 for further physical profile evaluation or medical treatment and disposition. 

7.  On 9 January 1973, the applicant voluntarily requested separation prior to his expiration of his term of service (ETS) under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 5, section XIV, by reason of early separation of personnel denied reenlistment under the qualitative management program.  He acknowledged he was requesting separation from the Army for his own personal convenience and that he would not be able to reenlist later.

8.  On 9 January 1973, his immediate commander recommended approval and recommended discharge as soon as possible.  He rated the applicant's conduct and efficiency as "unsatisfactory."  On 12 January 1973, his intermediate recommended approval.

9.  On 18 January 1973, the appropriate authority approved the applicant's request for an early separation under the qualitative management program. 

10.  Accordingly, by Special Orders Number 23, issued by Headquarters, 101st Airborne Division, Fort Campbell, KY, dated 1 February 1973, the applicant was released from active duty under the provisions of Army Regulation 635-200, chapter 5, section XIV, effective 1 February 1973, with a special program number (SPN) of 430 [early separation of personnel denied reenlistment under the qualitative management program].  His DD Form 214 issued at the time shows he was released from active duty with a general discharge, under SPN 430.  He served 2 years, 6 months, and 2 days of total active service, including service in the Republic of Vietnam from 3 November 1971 to 2 March 1972.

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

12.  References:

   a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-33 of the version in effect at the time provided for early separation of personnel denied reenlistment under the qualitative management program.  Specifically, an individual who was not eligible to reenlist upon the expiration of his or her ETS because of the provisions of chapter 4 of Army Regulation 600-200 could, upon request, be separated up to 6 months prior 


to ETS notwithstanding any existing service obligation which would not be fulfilled by such an early release date.  The regulation required that Soldiers requesting early separation under paragraph 5-33 sign a statement acknowledging early separation was for their own convenience, that recoupment of unearned portions of variable and reenlistment bonuses was required, that transition training was not authorized, and that enlistment later was not permitted.  The regulation also specified that the authority for separation, “para[graph] 5-33, A[rmy] R[egulation] 635-200 (Personnel Separations) and SPN 430,” would be included in directives and orders separating the Soldier.

   b.  Army Regulation 635-200, paragraph 1-1, states that millions of Americans from diverse backgrounds and with a wide variety of aptitudes and attitudes upon entering military service have served successfully in the Army.  It is the policy of the Army to provide Soldiers with the training, motivation, and professional leadership that inspires the dedicated Soldier to emulate his or her predecessors and peers in meeting required standards of performance and discipline.  The Army makes a substantial investment in training, time, and related expenses when persons enter into military service.  Reasonable efforts should be made to identify Soldiers who exhibit a likelihood for early separation and to improve their chances for retention through counseling, retraining, and rehabilitation prior to initiation of separation proceedings.  Soldiers who do not conform to required standards of discipline and performance and Soldiers who do not demonstrate potential for further military service should be separated in order to avoid the high costs in terms of pay, administrative efforts, degradation of morale, and substandard mission performance.

   c.  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 shows the applicant accepted NJP on three occasions for misconduct, twice before he was sent to Vietnam.  These disciplinary infractions were prejudicial to the order and discipline of his military unit.

2.  Clearly, the applicant's conduct and efficiency ratings were unsatisfactory due to his limited ability to adjust to military life and the demands it presented.  Based 


on his own limitations to conform to acceptable military standards, he personally requested a discharge from the Army under the provisions of Army Regulation 635-200, paragraph 5, section XIV prior to his ETS.

3.  The quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.  While the applicant's contention that his youth and immaturity contributed to his misconduct, he was over 18 years of age, which was the age of most recruits who were inducted into the Army of the United States or enlisted in the Regular Army.  Furthermore, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The applicant has not provided sufficient evidence to mitigate or warrant an upgrade of his discharge to an honorable discharge.  

5. In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20100027254



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ABCMR Record of Proceedings (cont)                                         AR20100027254



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