IN THE CASE OF:	  

		BOARD DATE:	    21 June 2011


		DOCKET NUMBER:  AR20100029237 


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 a fully honorable discharge.

2.  The applicant states that his discharge should be upgraded because he had only one incident while on active duty that led to his discharge.

3.  The applicant provides a copy of 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.  The applicant enlisted in the Regular Army in Phoenix, AZ on 7 February 1975 for a period of 4 years, assignment to the 82d Airborne Division, and a cash bonus.  He completed his basic and advanced individual training as a light weapons infantryman at Fort Polk, LA and was transferred to Fort Benning, GA to undergo his airborne training. 

3.  Upon arriving at Fort Benning the applicant waived his airborne training and he was transferred to Korea on 15 September 1975.  He was advanced to the grade of E-4 on 1 July 1976 and he departed Korea on 13 October 1976 for assignment to Fort Dix, NJ.

4.  On 16 December 1976, nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for wrongfully possessing marijuana.

5.  On 20 December 1976, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
5-37 (Expeditious Discharge Program (EDP)) due to his demonstrated performance and potential below acceptable standards.  The commander cited the basis for his recommendation as the applicant’s shirking of responsibility and failing to perform to the standards of his grade, his demonstrated dislike for the military and his stated desire to have nothing to do with the Army, his refusal to adjust to military life, and his inability to comply with general company policies and procedures. 

6.  The commander advised him of his rights and also advised him that he had the right to decline the discharge.

7.  On 23 December 1976, after consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

8.  On 3 January 1977, the appropriate authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.

9.  Accordingly, on 11 January 1977, he was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 5-37.  He had served 1 year, 11 months, and 5 days of total active service.

10.  There is no evidence in the available record to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.


11.  The Department of the Army began testing the EDP in October 1973.  In a message, dated 8 November 1974, the Deputy Chief of Staff for Personnel announced the expansion of the EDP.  The program provided for the separation of Soldiers whose acceptability, performance of duty, and/or potential for continued effective service fall below the standards required for retention in the Army.  Soldiers could be separated under this program when subjective evaluation of their commanders identified them as lacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  Soldiers considered for separation under this expanded program had to agree to separation under this program.  Soldiers who did not agree to separation under this provision were not exempt from separation under another provision of the regulation.  An honorable or general discharge was required and there has never been any provisions for an automatic upgrade of a discharge of less than fully honorable.

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.  The applicant’s administrative discharge was accomplished in accordance with applicable regulations with no violations of the applicant’s rights.  Accordingly, his discharge and the reasons therefore were appropriate under the circumstances.

2.  The applicant’s contentions have been noted.  However, given the circumstances in his case and the lack of mitigating circumstances, his service does not rise to the level of a fully honorable discharge.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


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)                                         AR20100029237



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ABCMR Record of Proceedings (cont)                                         AR20100029237



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