IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110006127 


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 that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states he is a Vietnam War veteran who spent the better part of 3 months in support of the war effort.  He goes on to state the environmental influences at the time in the continental United States and in Vietnam were stressful enough for anyone to handle.  No re-indoctrination into civilian life was provided at the time.  He further states he was "indisputably" honorably discharged and he would like an Honorable Discharge Certificate to reflect his honorable discharge status.

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 Los Angeles, California, on 5 November 1973 for a period of 3 years under the airborne training option.  He completed basic and advanced individual training as a food service specialist at Fort Ord, California, and was transferred to Fort Benning, Georgia, to undergo airborne training.

3.  On 21 March 1974, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave from 16 March to 19 March 1974.  On 29 March 1974, he was permanently disqualified from airborne training due to lack of motivation.

4.  On 16 May 1974, he was transferred to Aschaffenburg, Germany, for assignment to an infantry company as a food service specialist.  He was advanced to pay grade E-3 on 13 August 1974.

5.  On 9 October 1974, NJP was imposed against him for failing to go to his place of duty.

6.  On 24 March 1975, NJP was imposed against him for disobeying a lawful order from the charge of quarters.

7.  On 2 May 1975, NJP was imposed against the applicant for being drunk and disorderly.

8.  On 30 September 1975, the applicant's commander notified him that he was initiating action to discharge him from the service with a general discharge under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-37, and the Expeditious Discharge Program (EDP).  He cited the applicant's poor duty performance, poor attitude toward the service, lack of self discipline, disciplinary record, failure to demonstrate promotion potential, and lack of concern to improve his duty performance as the basis for his recommendation.

9.  The applicant acknowledged his rights and elected to voluntarily accept discharge from the Army with a general discharge.  He also declined to submit a statement in his own behalf.

10.  The appropriate authority approved the recommendation for discharge on 6 October 1975 and directed issuance of a General Discharge Certificate.

11.  Accordingly, he was discharged under honorable conditions on 4 November 1975 under the provisions of Army Regulation 635-200, paragraph 5-37, and the EDP.  He completed 1 year, 11 months, and 27 days of total active service.

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

13.  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 by their commanders identifies 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 had to consent to separation under this program in order for commanders to separate them under the EDP.  Otherwise, a commander was required to separate Soldiers under other provisions of the regulation, which in most cases resulted in a discharge under other than honorable conditions.

14.  Paragraph 3-7a of Army Regulation 635-200 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 contentions have been noted; however, they are not supported by either the evidence submitted with his application or the evidence of record.  He was properly notified of the commander's intent to recommend separation and was required to consent to the separation before the recommendation could be processed further.  The applicant consented to separation under the EDP and elected not to submit matters in his own behalf.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.

3.  His service was not fully honorable and, lacking evidence to show otherwise, there is no basis to upgrade his discharge to fully honorable.

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)                                         AR20110006127



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ABCMR Record of Proceedings (cont)                                         AR20110006127



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