BOARD DATE:	    22 September 2011 

		DOCKET NUMBER:  AR20110006342


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 discharge from an under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, his discharge should be upgraded.

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 enlisted in the Regular Army on 7 June 1974.  He completed training and was awarded military occupational specialty 11B (Infantryman).

3.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on three occasions:

* on 20 December 1974, for failing to be at his appointed place of duty on 9 and 10 December 1974
* on 6 March 1975, for absenting himself without authority from his unit from on or about 20 February 1975 through on or about 25 February 1975
* on 10 July 1975, for violating a lawful general regulation on 3 July 1975

4.  On 15 September 1975, his commander notified him that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program (EDP)).  As reasons for his proposed action, the commander stated:

Your attitude and performance are marred by disrespect and disregard for discipline and authority.  Your record shows a definite pattern that is entirely unsuited for retention within the Army.  Numerous attempts to provide new and dynamic leadership have all met the same failure, therefore any other administrative action is considered inappropriate.  There appears to be no other grounds for disposition.

5.  On 15 September 1973, he acknowledged he had been notified of the basis for the contemplated separation action under the EDP and he voluntarily consented to the discharge.  He elected not to submit statements in his own behalf.  He acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge were issued to him.  He further acknowledged he understood he could withdraw his voluntary consent to the discharge any time prior to the date the discharge authority approved his discharge.

6.  His discharge packet does not indicate whether he consulted with an officer of the Judge Advocate General's Corps on matters concerning his discharge under the EDP.

7.  On 3 October 1975, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5, for failure to maintain acceptable standards for continued military service.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 3 months, and 22 days of net active service with 5 days of lost time.  Item 9e (Character of Service) of his DD Form 214 shows under honorable conditions.

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

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37 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 could be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member could be separated under the EDP without his or her voluntary consent. 
Soldiers discharged under the EDP were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel.  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 the separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

10.  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 request for upgrade of his discharge under honorable conditions was carefully considered; however, the evidence of record is insufficient to grant relief in this case.

2.  His discharge proceedings were conducted in accordance with laws and regulations applicable at the time.  He voluntarily consented to separation under the EDP and he was fully aware his commander had recommended issuance of a General Discharge Certificate.  The available documentation shows no evidence of an error in the processing of his discharge or the characterization of his service.

3.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20090018593



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ABCMR Record of Proceedings (cont)                                         AR20110006342



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