IN THE CASE OF:	

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110004270 


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 under honorable conditions discharge to an honorable discharge.

2.  The applicant states he was not given due process.

3.  The applicant provides no 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 records show he enlisted in the Regular Army on 30 October 1979 and he held military occupational specialty 13B (Cannon Crewmember).

3.  On 15 August 1980, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 21 June to 4 August 1980. 

4.  On 29 September 1980, he received NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty and for missing movement.

5.  On 24 December 1980, he received NJP under the provisions of Article 15, UCMJ, for being AWOL from 1 November to 20 December 1980.

6.  On 25 February 1981, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 5 (Expeditious Discharge Program).  The specific reasons were for being a substandard Soldier and showing little interest in performing his job or improving his attitude as evidenced by his three Article 15s for failure to comply with military regulations.  The commander also stated the applicant frequently expressed his desire to get out of the Army.

7.  On 25 February 1981, he 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 action, the effect on future enlistment in the Army, the possible effects of a general under honorable conditions discharge, and of the procedures and rights that were available to him.  He voluntarily consented to this discharge.  He further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.  He voluntarily consented to the separation.  He also elected not to submit a statement in his own behalf.

8.  On 26 February 1981, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 5-31 for failure to meet acceptable standards for retention, and directed the issuance of a General Discharge Certificate.  On 3 March 1981, he was discharged accordingly.  

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, expeditious discharge program, by reason of failure to meet acceptable standards for retention with a general discharge.  He completed a total of 1 year and 15 days of creditable active service with 109 days of time lost due to AWOL.

10.  On 31 January 1983, the Army Discharge Review Board determined he was properly and equitably discharged and denied his request for an upgrade of his discharge.

11.  Chapter 5, Army Regulation 635-200, in effect at the time, 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received for failing to report to his place of duty and for being AWOL on two other occasions.  Accordingly, his commander initiated separation action against him.  

2.  Contrary to his contention that he was not given due process, the evidence of record shows he voluntarily consented to his discharge and 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 therefore were appropriate.  Based on his record, his service does not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he 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)                                         AR20110004270





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ABCMR Record of Proceedings (cont)                                         AR20110004270



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