IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110011845 


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 Discharge (GD), under honorable conditions to a fully Honorable Discharge (HD).
  
2.  He states he was told he would actively be serving in Vietnam; instead, he was sent to Germany.  He contends the Soldiers in Germany fought against one another which caused his failure to adapt to military life.  

3.  He adds that he needs his discharge upgraded in order to receive all the benefits to which he is entitled.  

4.  He did not provide any additional documentation.  

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.  On 27 January 1973, the Paris Peace Accords were signed, followed by the withdrawal of American troops from Vietnam.

3.  His records show he enlisted in the Regular Army on 21 August 1974 for a period of 2 years.  His enlistment contract shows he enlisted for the Regular Army option.  After the completion of training, he was awarded military occupational specialty 16D (Hawk Missile Crewman).

4.  A DA Form 2-1 (Personnel Qualification Record – Part II) shows the following information:

* Item 5 (Oversea Service) – he served in Germany from 4 January to 
   30 June 1975
* Item 9 (Awards, Decorations and Citations) – no decorations warranting special recognition or acts of valor
* Item 16 (Appointments and Reductions) – the highest rank he attained was private first class/E-3

5.  On 3 June 1975, the applicant’s immediate commander notified the applicant that he intended to recommend his discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program (EDP)) with a GD, under honorable conditions.  He remarked that the applicant consistently demonstrated an extremely negative attitude and an extreme lack of motivation since his assignment to the unit.  He added that the applicant demonstrated he would not stay on a job unless strictly supervised, and had frequently refused to work unless given a direct order.  The applicant had made it clear through his words and actions that he could not adapt either to duty or social conditions within the military.  

6.  On 5 June 1975, he was barred from reenlistment due to the reason indicated in the 3 June 1975 separation action.  

7.  On an unknown date, the applicant acknowledged receipt of the proposed action to discharge him from the Army.  He consulted with legal counsel and was advised of the basis for the contemplated separation from the Army; the effect on future enlistment in the Army; the possible effects of a GD, under honorable conditions; and of the procedures and rights that were available to him.  He voluntarily consented to this discharge and did not submit a statement on his own behalf.

8.  He further acknowledged that he understood if he were issued a GD, he could expect to encounter substantial prejudice in civilian life.  
9.  The separation authority approved the applicant's discharge under the provisions of paragraph 5-37 of Army Regulation 635-200 by reason of failure to meet acceptable standards for continued military service and directed that he receive a General Discharge Certificate.  

10.  On 1 July 1975, he was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed a total of 
10 months and 11 days of creditable active military service.  Item 9c (Authority and Reason) shows he was separated under the provisions of Army Regulation 635-200, paragraph 5-37, with an SPD (Separation Program Designator) of KMN.

11.  There is no indication he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 5 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 EDP.

13.  The same chapter stated that the EDP 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 GD is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

14.  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 contends that his GD, under honorable conditions should be upgraded to a fully HD in order to make him eligible for all benefits to which he is entitled.  He added that he was told he would be serving in Vietnam, but was sent to Germany instead.

2.  The evidence of record shows he enlisted under the Regular Army option with no contractual promises, over a year after the Vietnam War ended for American fighting troops.  His statement that he was told he would actively serve in Vietnam, or that he believed such statement if made, is not credible.  He demonstrated that he could not or would not meet acceptable standards required of enlisted personnel because of his inability to adapt socially or emotionally.  Accordingly, his immediate commander initiated separation action against him.  More importantly is the fact that he voluntarily consented to his discharge.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

3.  His was discharged under the provisions of Army Regulation 635-200, paragraph 5-37 EDP and was given a GD, under honorable conditions.  The type of discharge directed and the reason for separation therefore were appropriate considering all the facts of the case.  Based on his overall record, his service does not meet the standards of acceptable conduct of duty for Army personnel.  

4.  The ABCMR does correct records solely for the purpose of establishing eligibility for other programs or benefits.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

5.  The applicant failed to submit evidence that would satisfy this requirement.  In view of the circumstances in this case, he is not entitled to a HD.  He has not shown error, injustice, or inequity for the relief he requests.



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)                                         AR20110011845





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ABCMR Record of Proceedings (cont)                                         AR20110011845



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