IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100030397 


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states he has turned his life around and would like to see his discharge changed.

3.  The applicant provides a self-authored letter 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's records show he enlisted in the Regular Army for a period of 3 years on 24 January 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty 31M (Multichannel Communications Equipment Operator).  The highest rank/grade he attained during his military service was private first class/pay grade E-3.

3.  On 30 January 1979, the applicant received nonjudical punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for disorderly conduct.  The punishment consisted of reduction to the rank/grade of private/pay grade 
E-2, suspended for 90 days; forfeiture of $50.00 pay; 14 days of extra duty; 14 days of restriction; and an oral reprimand.

4.  On 9 August 1979, the applicant received NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty.  The punishment consisted of forfeiture of $50.00 pay, suspended for 30 days.

5.  On 7 February 1980, the applicant received NJP under Article 15, UCMJ, for being absent without leave (AWOL) from 0715 hours to 1400 hours, 4 January 1980.  The punishment consisted of reduction to the rank/grade of private/pay grade E-2 and 14 days extra duty.

6.  On 6 March 1980, the applicant received NJP under Article 15, UCMJ, for being AWOL from 21 to 30 January 1980.  The punishment consisted of forfeiture of $250.00 pay for 2 months, suspended for 60 days; 45 days of restriction; and 30 days of extra duty.

7.  On 6 August 1980, the applicant received NJP under Article 15, UCMJ, for being AWOL from 7 June to 16 July 1980.  The punishment consisted of reduction to the rank/grade of private/pay grade E-1, 45 days of extra duty, and 45 days of restriction.

8.  On 28 October 1980, the applicant again received NJP under Article 15, UCMJ, for being drunk on duty.  The punishment consisted of a forfeiture of $100.00 pay and 14 days of restriction.

9.  On 28 October 1980, the applicant's immediate commander advised the applicant he intended to recommend the applicant be discharged under the provisions of paragraph 5-31 (Expeditious Discharge Program), Army Regulation 635-200 (Personnel Separations), by reason of lack of self-discipline, totally unacceptable attitude, and substandard duty performance.

10.  On 30 October 1980, the applicant acknowledged notification of the proposed separation action.  He understood the basis for the contemplated separation action under the provisions of paragraph 5-31, Army Regulation 
635-200, the effect on future enlistment in the Army, the possible effects of a general discharge, and the procedures and rights available to him.  He voluntarily consented to the separation action and declined to make a statement in his own behalf.  The applicant further acknowledged he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.  The applicant was afforded the opportunity to consult with legal counsel but he failed to do so.

11.  On 18 November 1980, the separation authority approved the applicant's discharge and directed that he receive a General Discharge Certificate.  On 12 December 1980, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed a total of 2 years, 9 months, and 1 day of creditable active military service.  Item 28 (Narrative Reason for Separation) shows the entry, "Expeditious Discharge Program (failure to maintain acceptable standards for retention)."

12.  On 30 September 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 5 provided that members who completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the Expeditious Discharge Program.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an Honorable Discharge Certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

14.  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 contention that his discharge should be upgraded was carefully considered and found to lack merit.

2.  The available evidence shows the applicant voluntarily consented to discharge under the Expeditious Discharge Program.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  The applicant's record of service shows he displayed an inability to adjust to the regimentation of military life as reflected by his failure to adjust to the military environment and/or respond to counseling.  Based on the applicant's overall record, his service did not meet the standards of acceptable conduct and performance for Army personnel.  Therefore, the applicant is not entitled to an honorable 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 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)                                         AR20100030397



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100030397



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1