BOARD DATE: 1 December 2011
DOCKET NUMBER: AR20110012234
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 he be credited with completion of his first term of service.
2. The applicant states, in effect, he was discharged from the Army as a drug addict without any help for his problem. He needs help because his life has involved prison and drugs since he was discharged.
3. The applicant provides no additional documents with his application.
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 applicants 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 applicants 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 Houston, Texas on 26 April 1977 for a period of 3 years, training as an infantryman, and assignment to the 8th Infantry Division. He completed basic training at Fort Dix, New Jersey and he was transferred to Fort Benning, Georgia to undergo advanced individual training (AIT). On 6 August 1977, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty.
3. On 6 September 1977, he completed AIT and was transferred to an infantry company in Baumholder, Germany.
4. On 20 July 1978, NJP was imposed against him for using disrespectful language towards a superior commissioned officer.
5. On 14 September 1978, NJP was imposed against the applicant for failure to go to his place of duty.
6. On 25 September 1978, the commander notified the applicant that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 5-31, under the Expeditious Discharge Program (EDP). The commander cited as the basis for his recommendation the applicants poor attitude.
7. After consulting with defense counsel, the applicant acknowledged the commanders notification and indicated that he accepted discharge from the Army under the conditions stated (Honorable Discharge) and he elected not to submit a statement in his own behalf.
8. The appropriate authority approved the recommendation for discharge and directed that he be furnished an Honorable Discharge Certificate.
9. Accordingly, he was honorably discharged on 10 October 1978 under the provisions of Army Regulation 635-200, paragraph 5-31 for unsuitability under the EDP. He had served 1 year, 5 months, and 15 days of total active service.
10. A review of his official records failed to show any indication that the applicant was suspected of or known to be using drugs prior to or during his service.
11. 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 of 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 an other than honorable discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicants administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.
2. Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.
3. The applicants 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 commanders intent to recommend separation and he was required to consent to the separation action 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.
4. The applicant was discharged under the EDP due to his own actions and absent evidence to show otherwise there is no basis to grant him credit for completing his first full term of service.
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) AR20110012234
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ABCMR Record of Proceedings (cont) AR20110012234
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