BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100028876 


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 that his general discharge be upgraded to an honorable discharge.

2.  The applicant states he believes his discharge was unfair and punishment was a bit harsh, considering he was given no reason why he was being discharged.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).

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.  His military records show he enlisted in the Regular Army on 24 August 1973.  He completed initial entry training and was awarded the military occupational specialty of automotive repairman.  The highest rank/grade he attained was private first class/E-3.

3.  He accepted nonjudicial punishment (NJP) on three separate occasions for wrongfully having in his possession less than one gram of a controlled substance, marijuana; failing to go at the time prescribed to his appointed place of duty; and for leaving his appointed place of duty without authority (twice).

4.  On 21 February 1975, his commander informed the applicant that he was initiating action to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), under the Expeditious Discharge Program (EDP).  The commander cited the bases for the recommendation were the applicant displayed an inability to conform to the basic standards of military conduct and discipline.  The applicant refused to maintain the basic standards of appearance and the apathetic approach to his assigned duties could only bring more serious disciplinary action against him.  The commander stated the applicant did not possess the essential qualities of a Soldier and continued military service would serve no good purpose for him or the U.S. Army.

5.  On 21 February 1975, the applicant acknowledged he had been notified of the proposed separation action and indicated he voluntarily consented to discharge.  He elected not to submit a statement in his own behalf.  He further acknowledged he understood if he were issued a general discharge under honorable conditions, he might expect to encounter substantial prejudice in civilian life.  He further acknowledged he had been provided the opportunity to consult with counsel.

6.  On 4 March 1975, the separation authority approved his discharge under the provisions of the EDP for unsuitability due to apathy, defective attitudes, and inability to expend effort constructively.

7.  On 20 March 1975, he was discharged accordingly.  The DD Form 214 he was issued at that time shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-37, and that he completed 1 year, 6 months, and 27 days of creditable active service.

8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.


9.  Army Regulation 635-200, paragraph 5-37 provided that members who had demonstrated they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions, may be discharged for:

* poor attitude
* lack of motivation
* lack of self-discipline
* inability to adapt socially or emotionally
* failure to demonstrate promotion potential

10.  These provisions were intended to relieve unit commanders of the administrative burden normally associated with processing eliminations for cause through administrative separation boards by providing a means to separate such personnel expeditiously before they progressed to the point where a board or punitive action became necessary.

11.  Members separated under the EDP could be awarded a character of service of honorable or under honorable conditions, as appropriate.

12.  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.  NJP action was taken against the applicant on three occasions for offenses including wrongfully having in his possession less than one gram of marijuana; failing to go at the time prescribed to his appointed place of duty, and for leaving his appointed place of duty without authority.

2.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  The evidence shows he acknowledged notification of the proposed separation action and that he was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.
4.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20100028876



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ABCMR Record of Proceedings (cont)                                         AR20100028876



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