BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100030089 


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 be upgraded to an honorable discharge.

2.  He states that he and his wife's first child was born prematurely and was still in the hospital at the time of his request for a hardship discharge.  He explains that he was 18 years old at the time and felt that he should help his 16 year old wife with their first born child.

3.  He does not provide any additional evidence.

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 record shows he enlisted in the Regular Army on 23 February 1977.

3.  On 22 February 1978, nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for being absent without authority from 5 December 1977 to 2 January 1978.

4.  On 8 March 1978, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program [EDP]), with a general discharge.  The commander stated the reason for his proposed action was the applicant's inability to adjust to military life.  He said the problems that existed in the applicant's family had precluded any type of military development and all possible efforts to assist him by the chain of command had been exhausted with no success.

5.  He was advised he had the right to decline the discharge, but if subsequent misconduct indicated that such action was warranted, he may be subjected to disciplinary or administrative separation procedures under other provisions of law or regulation.

6.  He was further advised that if he received a general discharge he may expect to encounter substantial prejudice in civilian life.  The commander also advised him:

* of his right to consult with an officer of the Judge Advocate General's Corps prior to completing his acknowledgements
* of his right to submit a statement in his own behalf

7.  He acknowledged notification of the proposed discharge action and voluntarily consented to the discharge.  He did not submit statements in his own behalf.

8.  On 14 March 1978, the appropriate authority approved his separation under the provisions of Army Regulation 635-200, paragraph 5-31, and directed the issuance of a General Discharge Certificate.

9.  On 20 March 1978, the applicant was discharged under the provisions of paragraph 5-31 of Army Regulation 635-200.  He had completed 1 year and 
1 day of active service with 27 days listed as lost time.

10.  His record is void of any evidence that shows he applied for a hardship discharge.

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

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31 of this regulation provided for the discharge of enlisted personnel who had demonstrated that 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: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  The regulation provided that no individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either a general or honorable discharge.

13.  Army Regulation 635-200, then in effect, provides that those Soldiers processed under the EDP may be released from active duty and transferred to the Individual Ready Reserve to complete their military obligation if deemed to have the potential for service under conditions of full mobilization.  Soldiers deemed to have no potential for useful service under conditions of full mobilization were to be discharged.

14.  Army Regulation 635-200, paragraph 3-7a, states 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.  There is no evidence and the applicant did not provide any to show that he applied for and was denied a hardship discharge.  The evidence of record shows he was properly and equitably discharged in accordance with regulations in effect at the time.  His commander notified him of the reason and the type of discharge that was recommended.  He voluntarily consented to the proposed discharge.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

2.  In view of the above, there is insufficient evidence on which to base an upgrade of his discharge.

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)                                         AR20100030089





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ABCMR Record of Proceedings (cont)                                         AR20100030089



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