IN THE CASE OF:	  

		BOARD DATE:	  6 March 2012

		DOCKET NUMBER:  AR20110018678 


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 be upgraded to honorable.

2.  The applicant states he was very young when he entered the Army.  He states he was a very foolish kid when he requested to be released from the Army before his service contract was complete and he has always regretted that decision.  He remembers his captain telling him he did not want to release him because he was not a bad kid and the captain thought he could become a good Soldier.  The captain also stated that he would be in the Individual Ready Reserve (IRR) and once his time in service expired and if he was not in prison, he could apply for a discharge upgrade.  He states he is not in prison and never has been.  He also raised a family and has been a productive member of our Nation for many years.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge 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 20 February 1979.  He was 17 years, 3 months, and 25 days of age at the time of his entry on active duty.  Upon completion of initial entry training he was awarded military occupational specialty 12C (Bridge Crewman).

3.  He accepted nonjudicial punishment:

	a.  on 10 August 1979, for disobeying a lawful order from a noncommissioned officer, failing to go at the time prescribed to his appointed place of duty, and being absent from his place of duty without authority;

	b.  on 11 September 1979, for being absent without leave (AWOL) during the period 20-23 August 1979; and

	c.  on 20 November 1979, for being AWOL during the period 6-11 November 1979.

4.  On 21 November 1979, his immediate commander recommended the applicant's separation under the provisions or Army Regulation 635-200 (Personnel Separations), paragraph 5-31 (Expeditious Discharge Program (EDP)).  The commander cited the applicant's three nonjudicial punishments and four negative counseling sessions for a number of infractions that included haircut, uniform, appearance, tardiness, absence from his place of duty, and use of alcohol while on duty as the reasons for his recommendation.

5.  On 21  November 1979, he was informed by his immediate commander that action was being initiated to release him from active duty under the provisions of Army Regulation 635-200, paragraph 5-31, under the EDP.  His commander cited the applicant's poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and failure to demonstrate promotion potential as the reasons for the proposed separation.

6.  After consulting with counsel, the applicant acknowledged notification of his proposed separation from the Army.  He voluntarily consented to the separation and elected not to submit a statement in his own behalf.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge.

7.  On 5 December 1979, the separation authority approved the separation action and directed his service characterization as "under honorable conditions."  On 10 December 1979, he was released from active duty and transferred to the IRR to complete his remaining military obligation.  His DD Form 214 confirms he completed 9 months and 6 days of creditable active service and accrued 9 days of lost time.  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "EDP – failure to maintain acceptable standards for retention."

8.  There is no evidence showing he 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 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31, 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 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 may be discharged under the EDP.  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.

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 contention that his discharge should be upgraded because he was a young and very foolish kid has been carefully considered.

2.  The evidence shows he completed initial entry training.  This shows he was mature enough to satisfactorily serve.  There is no evidence that he was any less mature than other Soldiers of the same age who successfully completed their terms of military service.

3.  The available evidence confirms his separation processing was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

4.  His record of indiscipline includes nonjudicial punishment on three occasions, four negative counseling sessions, and 9 days of lost time.  Based on this record of indiscipline, his overall record of service did not support the issuance of an honorable discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  In view of the foregoing, there is no basis to grant 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)                                         AR20110018678



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ABCMR Record of Proceedings (cont)                                         AR20110018678



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