IN THE CASE OF:	  

		BOARD DATE:	 20 December 2011

		DOCKET NUMBER:  AR20110011638 


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 his general discharge be upgraded to an honorable discharge.

2.  He states that he performed his duties as a medic competently and he saved quite a few lives.  His general discharge was political and not something he deserved.

3.  He 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 military records show he enlisted in the Regular Army, in pay grade E-1 on 13 July 1977.  He completed training and was awarded military occupational specialty 91B (Medical Specialist).  He served in Hawaii from 11 January 1978 through 26 September 1979.  He was advanced to pay grade E-3 on 31 August 1978.

3.  On 23 April 1979, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty on 16 April 1979.  He was reduced to pay grade E-2 on 23 April 1979.

4.  A Bar to Reenlistment initiated against him was approved on 10 August 1979.

5.  He was reported absent without leave on 5 September 1979 and returned to military control on 10 September 1979.

6.  In a certificate, dated 12 September 1979, the applicant’s unit commander stated that the applicant was a rehabilitation transfer from the 1st Battalion, 35th Infantry, on 31 May 1979.  Since his assignment to that unit, he had been a sub-standard performer resulting in numerous counseling sessions.  The applicant desired separation from the service.  That command concurred.  At that time, the applicant continuously resisted all attempts made by the chain of command.  The applicant did not possess the attributes or the qualities the Army desired of Soldiers.  It was in the best interest of the Army and the individual that the applicant be separated from the service under Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 5.

7.  On 13 September 1979, the applicant‘s company commander notified the applicant that he was initiating action to discharge the applicant under the provisions of Army Regulation 635-200, paragraph 5-31, under the Expeditious Discharge Program (EDP), with a general discharge.  The company commander stated the reasons were the applicant’s lack of ability to cope with the military and inability to adapt socially and emotionally.  The applicant was advised of his rights.

8.  A Record of Counseling, dated 18 September 1979 shows he received the following counseling from 3 February 1978 to 16 August 1979 for the following:

* Failing to secure his weapon
* Poor military bearing (twice)
* Disobeying the order of a noncommissioned officer (NCO)
* Unserviceable uniform
* Disorderly conduct
* Being late for duty (twice)
* Article 15
* Being late for formation (three times)
9.  On 18 September 1979, the applicant acknowledged receipt of the proposed separation action.  After consulting with counsel, he waived his rights, consented to the proposed discharge action, and elected not to submit a statement in his own behalf.  He acknowledged that if he was furnished a general under honorable conditions discharge he could expect to encounter substantial prejudice in civilian life.

10.  On 21 September 1979, the appropriate separation authority directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 5-31, for failure to meet acceptable standards for continued military service, with a general discharge.

11.  He was discharged from active duty, in pay grade E-2, on 28 September 1979, under the provisions of Army Regulation 635-200, paragraph 5-31, with a general discharge.  He was credited with completion of 2 years, 2 months, and 11 days of net active service and 5 days time lost.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31 provided for the discharge of enlisted personnel whose performance of duty and potential for continued effective service fell below the standards required in the Army.  Individuals discharged under this regulation could be issued a general or honorable discharge.

13.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received counseling from 3 February 1978 to 29 May 1979 for failing to secure his weapon, poor military bearing, disobeying the order of a noncommissioned officer, disorderly conduct, and being late for duty on several occasions.  On 31 May 1979, he was rehabilitatively transferred to another unit.  That unit commander stated the applicant had been a sub-standard performer which resulted in numerous counseling sessions.  The unit commander stated that the applicant desired to be separated from the service and the command concurred.

2.  On 21 September 1979, the separation authority directed he be separated for failure to meet acceptable standards for continue military service.  Accordingly, he was discharged on 28 September 1979.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The applicant voluntarily accepted discharge under the provisions of the EDP in lieu of disciplinary or administrative separation under other provisions of law or regulations.  He acknowledged he understood the ramifications of a general under honorable conditions discharge and he had the opportunity to consult with legal counsel prior to accepting discharge. 

4.  His service did not meet the standards of acceptable conduct and performance 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)                                         AR20110011638





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ABCMR Record of Proceedings (cont)                                         AR20110011638



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