IN THE CASE OF:	  

		BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110010900 


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, in effect, that his general discharge be upgraded to an honorable discharge.  

2.  The applicant states that there is no special reason for his request.  The Army owes him nothing, he is just asking that his discharge be upgraded.

3.  The applicant provides no documentary 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 record shows he enlisted in the Regular Army on 28 August 1980.  He successfully completed the required training and was awarded military occupational specialty 31K (Field Radio Repairer).  The highest grade he attained was pay grade E-3.

3.  On 9 February 1981, the applicant accepted nonjudicial punishment (NJP) for failure to go at the prescribed time to his appointed place of duty.  

4.  On 17 March 1981, the applicant accepted NJP for the wrongful possession of 0.5 grams of marijuana.

5.  On 12 May 1981, the applicant accepted NJP for failure to go at the prescribed time to his appointed place of duty.

6.  Between January and March 1982, the applicant was counseled on four different occasions for four incidents of failure to repair and for two incidents of missing formation   

7.  On 14 May 1982, the applicant’s unit commander notified the applicant of his intent to initiate action to separate him under the provisions Army Regulation 635-200, paragraph 5-31, Expeditious Discharge Program (EDP), with a discharge under honorable conditions.  The reason for his proposed action was 
the applicant’s lack of self discipline, his inability to accept instructions and directions, his lack of cooperation with peers and superiors, his four counseling statements, and his punishment under Article 15 on three different occasions.  The unit commander further informed the applicant of the effects of a less than honorable discharge and the rights available to him.  The applicant was further informed that the final decision as to whether he would be discharged and the type of discharge issued rested on the discharge authority.  If furnished a general discharge he may expect to encounter substantial prejudice in civilian life.  The applicant was informed that he had the right to decline the discharge.  If he declined subsequent conduct could warrant disciplinary or administrative separation procedures under other provisions of law or regulations.  

8.  The applicant acknowledged notification of his proposed separation action from the United States Army under the provisions of Army Regulation 635-200 paragraph 5-31 (EDP).  He acknowledged that he understood that his service would be characterized as under honorable conditions and that he may expect to encounter substantial prejudice in civilian life.  He also acknowledged that he was provided the opportunity to consult with legal counsel and was advised of the basis for the contemplated separation action, its effects and of the rights available to him.  The applicant voluntarily consented to the discharge and his record does not indicate that he elected to make a statement in his own behalf.  

9.  On 16 June 1982, the separation authority approved the applicant’s separation under the provisions of the EDP for failure to meet acceptable standards for continued military service and directed that the applicant receive an Under Honorable Conditions Discharge Certificate.  On 18 June 1982, the applicant was separated accordingly.  The DD Form 214 issued to him upon his separation confirms he was separated under the provisions of paragraph 5-31, Army Regulation 635-200, by reason of failure to maintain acceptable standards for retention.  It also shows that at the time of discharge, he had completed a total of 1 year, 9 months, and 21 days of active military service.  

10.  There is no indication in his military record that the applicant applied for an upgrade of his discharge to the Army Discharge Review Board within its 15-year statute of limitations.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, then in effect, provided the policy and outlined the procedures for separating individuals under the EDP who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel. An honorable or general discharge could be issued under this program.  

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's voluntary consent for separation under the provisions of Army Regulation 635-200, paragraph 5-31, was administratively correct and in conformance with applicable regulations.  There is no indication that the consent was made under coercion, duress or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge was approved, he could encounter substantial prejudice in civilian life by reason of a discharge under honorable conditions.   

2.  The evidence of record confirms that the applicant’s discharge was based on his inability to meet acceptable military standards.  There is no evidence in his military record nor has the applicant provided any evidence to support his allegations. 

3.  Therefore, the applicant’s discharge processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met and that the applicant’s rights were protected throughout the separation process.  The record further confirms that the applicant voluntarily consented to the discharge and that his discharge accurately reflects his overall record of service.

4.  In view of the foregoing, there is no basis for granting the request. 

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)                                         AR20110010900



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ABCMR Record of Proceedings (cont)                                         AR20110010900



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