IN THE CASE OF:	  

		BOARD DATE:  19 January 2012

		DOCKET NUMBER:  AR20110014699 


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 under honorable conditions to honorable.

2.  The applicant states he was discharged from the Army because of sexual trauma and mental disabilities.  He now receives a 50-percent service-connected disability from the Department of Veterans Affairs (VA) for having bipolar disorder due to sexual trauma.

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* letter from the VA
* letter from the National Personnel Records Center
* DD Form 4 (Enlistment Contract – Armed Forces of the United States)
* two DA Forms 2627 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice (UCMJ))
* DA Form 20 (Enlisted Qualification Record)
* DA Form 2-1 (Personnel Qualification Record)
* Standard Form 600 (Chronological Record of Medical Care)
* Standard Form 601 (Immunization Record)
* Standard Form 603 (Health Record – Dental)
* DD Form 214 (Report of Separation from Active Duty)



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 13 August 1974.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank he attained while serving on active duty was private/E-2.

3.  His DA Form 2-1 shows he was assigned to Company C, 1st Battalion, 15th Infantry, 3rd Infantry Division, in Germany from 6 March 1975 to 9 May 1975.

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, on two occasions:

* on 24 February 1975, for absenting himself from duty at the airport passenger liaison office from 13-19 February 1975 and purposely missing the movement of an aircraft which he was required to be on in the course of his duty
* on 11 April 1975, for failure to be at his appointed place of duty for an MOS test on 11 April 1975

5.  On 11 April 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:

* since his arrival in this unit, he has displayed a completely negative attitude
* he is devoid of any interest in his job, as was most recently represented in his purposefully failing to appear at the proper place and time for his MOS test
* as a private with 8 months in service coupled with a poor attitude, he has absolutely no promotion potential

6.  On 14 April 1975, 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.

7.  On 12 May 1975, he consulted with an officer of the Judge Advocate General's Corps on matters concerning his discharge under the EDP.

8.  On 12 May 1975 he signed a document stating he underwent a separation medical examination in April 1975 and there had been no change in his medical condition since then.

9.  On 3 October 1975, he was discharged under the provisions of Army Regulation 635-200, chapter 5, for failure to maintain acceptable standards for continued military service.  His DD Form 214 shows he completed 9 months of net active service.  Item 9e (Character of Service) of his DD Form 214 shows under honorable conditions.

10.  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.

11.  The applicant provides a copy of his medical and dental records as evidence.  There is no report of sexual trauma or mental disabilities in these records.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37, in effect at the time, 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 an honorable or a general 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.

13.  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.  There is no record of sexual trauma or mental disabilities in his military record, nor were these the reason for his discharge.

3.  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.

4.  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)                                         AR20110014699



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ABCMR Record of Proceedings (cont)                                         AR20110014699



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