IN THE CASE OF:	  

		BOARD DATE:	    28 February 2012

		DOCKET NUMBER:  AR20110017212 


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 that his general discharge under honorable conditions for the period ending 22 October 1979 be upgraded to a fully honorable discharge.

2.  The applicant states he met a woman in Germany whom he loved and married.  She was divorced with a child and her ex-husband repeatedly threatened their lives.  He could not get help from his chain of command and accepted a general discharge with much regret to get away from the threat.  He states he was a good Soldier and wanted to make a career out of the Army but had to get his family out of harm's way.

3.  The applicant provides a one-page handwritten letter explaining 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 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 U.S. Army Reserve (USAR) on 18 June 1975 for a period of 6 years.  He was ordered to active duty for training (ADT) on 21 August 1975 and completed basic and advanced individual training (AIT) as a medical specialist before being honorably released from ADT to his USAR unit on 18 December 1975.

3.  On 15 November 1977, he was discharged from the USAR for the purpose of enlisting in the Regular Army.  He enlisted in the Regular Army for a period of 4 years and assignment to Europe on 16 November 1977.  He was transferred to Germany on 2 December 1977 for assignment to a medical company in Bad Kreuznach as an ambulance orderly.

4.  On 31 August 1978, nonjudicial punishment (NJP) was imposed against him for being absent from his place of duty and dereliction of duty.

5.  On 17 July 1979, NJP was imposed against him for violating a lawful regulation by exceeding the speed limit.

6.  On 27 August 1979, NJP was imposed against him for being absent without leave (AWOL) from 13 to 15 August 1979.

7.  His records show that during the period 27 February 1979 through 20 June 1979, the applicant was counseled on numerous occasions regarding violations of unit standing operating procedures by not securing his personal effects, failing to go to his place of duty, false swearing, making false official statements, failing to obey a lawful order from a superior noncommissioned officer (first sergeant), leaving his place of duty without authorization, and disobeying a lawful order from a superior commissioned officer (commander).  His records also show he was AWOL from 24 to 27 August 1978; however, the record is silent as to any punishment imposed for that offense.

8.  On 11 September 1979, the applicant underwent a psychiatric evaluation and the examining psychiatrist opined that there was no evidence of thought disorder or suicidal or homicidal ideation or of a debilitating neurosis.  However, the applicant indicated he had great concern for his safety and a desire to remain in the Army if he could be transferred to the continental United States.  He indicated that his fiancée's German ex-husband who was jealous and in prison had threatened the both of them, but he planned to marry her nevertheless.  He indicated that he would like to be discharged if he could not be transferred stateside.

9.  On 4 October 1979, the applicant's commander notified him that he was initiating action to discharge him from the service due to his failure to maintain acceptable standards for retention under the provisions of Army Regulation 
635-200 (Personnel Separations), paragraph 5-31, and the Expeditious Discharge Program (EDP).  He cited the applicant's disciplinary record, his lack of motivation, and his failure to respond to repeated counseling sessions as the basis for his recommendation.

10.  The applicant acknowledged notification of his proposed discharge and voluntarily consented to the discharge.  He also elected not to submit matters in his own behalf.

11.  The appropriate authority approved the recommendation for discharge on 10 October 1979 and directed issuance of a General Discharge Certificate.

12.  Accordingly, he was discharged under honorable conditions at Fort Jackson, South Carolina, on 22 October 1979 due to failure to maintain acceptable standards for retention under the provisions of Army Regulation 635-200, paragraph 5-31, and the EDP.  He completed 1 year, 11 months, and 5 days of active service during the period under review and had 5 days of lost time due to AWOL.

13.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

14.  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 by their commanders identified 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 considered for separation under this expanded program had to agree to separation under the program.  Soldiers who did not agree to separation under this provision were not exempt from separation under another provision of the regulation.  An honorable or general discharge was required.  

15.  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 administrative discharge was accomplished in accordance with applicable regulations with no violations of the applicant's rights.  Accordingly, his discharge and the reasons were appropriate under the circumstances.

2.  The applicant's contentions have been noted.  However, given the circumstances in his case and his repeated misconduct and failure to adhere to standards, his service did not rise to the level of a fully honorable discharge.

3.  Accordingly, there appears to be no basis to grant his request for an upgrade of his 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 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)                                         AR20110017212



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ABCMR Record of Proceedings (cont)                                         AR20110017212



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