IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20110000013 


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 a fully honorable discharge.  

2.  The applicant states he is a patriot.  His intent was to make the Army a career but he later became depressed and he had marital problems which created a hardship on him and ultimately led to a general discharge. 

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.  The applicant's records show he enlisted in the Regular Army for 3 years on 22 August 1973.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 24G (Improved Hawk Information Coordination Center Mechanic).  The highest rank/grade he attained during his military service was specialist four/E-4.  

3.  The applicant’s records also show he served in Korea from 13 August 1975 to 25 February 1976.  He was awarded the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant’s records contain a history of negative counseling by members of his chain of command for various infractions including:

* Disobeying lawful orders
* Failure to report to guard duty
* Disregarding regulations and orders
* Exhibiting a strong desire to get out of the Army

5.  On 6 January 1976, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty and absenting himself from his appointed place of duty.

6.  On 22 January 1976, the applicant’s immediate commander notified the applicant that he intended to recommend his discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program (EDP)), by reason of lack of motivation, poor attitude, and lack of self-discipline.  The immediate commander noted that the applicant's duty performance was characterized by behavior that rendered him repeatedly subject to punitive action.   

7.  On 22 January 1976, the applicant acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army; the effect on future enlistment in the Army; the possible effects of a general discharge; and of the procedures and rights that were available to him.  He voluntarily consented to this discharge.  The applicant further acknowledged that he understood if he were issued a general discharge he could expect to encounter substantial prejudice in civilian life.  He also elected not to submit a statement in his own behalf.

8.  On 22 January 1976, the applicant’s immediate commander recommended the applicant be discharged with a General Discharge Certificate.
9.  On 6 February 1976, subsequent to a review by the Command Judge Advocate for legal sufficiency, the separation authority approved the applicant's discharge under the provisions of paragraph 5-37 of Army Regulation 635-200 by reason of failure to meet acceptable standards for continued military service and directed that he receive a General Discharge Certificate.  On 26 February 1976, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed 2 years, 6 months, and 5 days of creditable active military service.  

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

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that 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 EDP.  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.

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 contends that his discharge should be upgraded.


2.  The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel because of his inability to meet acceptable standards for continued military service.  Accordingly, his immediate commander initiated separation action against him.  More importantly is the fact that he voluntarily consented to his discharge.  

3.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation therefore were appropriate considering all the facts of the case.  Based on his overall record, the applicant's service does not meet the standards of acceptable conduct of duty for Army personnel.  

4.  The challenges he described in relation to his spouse are noted; however, there were other legitimate avenues he could have used to resolve these issues had he chosen to use them.  He has not shown error, injustice, or inequity for the relief he requests.  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 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)                                         AR20110000013



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ABCMR Record of Proceedings (cont)                                         AR20110000013



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