IN THE CASE OF:	  

		BOARD DATE:	    13 March 2012

		DOCKET NUMBER:  AR20110016830 


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 to an honorable discharge.

2.  The applicant states he was informed he could change his discharge if he wanted to and he now wants to.  He waited until now to ask for it to be changed because he was not psychiatrically stable until now.  He was told to accept a general discharge at the time because he had several medical issues.  He has records showing he has a mental condition and back problems.

3.  The applicant 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 records show he enlisted in the Regular Army on 10 December 1973 and he held military occupational specialty 63A (Mechanical Maintenance Helper).  The highest rank/grade he held while in an active duty status was private first class/E-3.

3.  On 9 September 1974, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent from his appointed place of duty.

4.  Special Orders Number 212, dated 31 July 1975, issued by Headquarters, U.S. Army Europe and Seventh Army, Germany, reduced him to the rank/grade of private/E-2, effective 23 July 1975, by the authority of an Article 15, UCMJ, due to misconduct.  The DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) is not available for review with this case.

5.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions (FLAG), dated 4 August 1975, shows his records were flagged on this date while he was pending elimination under the expeditious discharge program.

6.  On 15 August 1975, he underwent a mental status evaluation.  The examining physician indicated the applicant's behavior was normal, he was mentally responsible, and his thought content was normal.

7.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However the DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged on 10 September 1975, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 5, under the expeditious discharge program with an under honorable conditions characterization of service.  He completed 1 year, 9 months, and 1 day of creditable active service.  

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200, chapter 5, in effect at the time, 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 expeditious discharge program.  It 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 general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

10.  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 record is void of the complete facts and circumstances surrounding his discharge.  However, his DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, expeditious discharge program.  Discharges under this program were not allowed unless the Soldier voluntarily consented to the discharge.  

2.  In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights and that based on his overall record the type of discharge directed and the reason for discharge were appropriate.  

3.  In view of the foregoing, there is insufficient evidence to grant him 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 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)                                         AR20110016830



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ABCMR Record of Proceedings (cont)                                         AR20110016830



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