BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110023350 


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 a fully honorable discharge.

2.  The applicant states:

* he was injured in the line of duty; his left knee was broken in three places but was not diagnosed until a year later
* the injury caused him to have trouble working in his specialty
* he also suffered from what is now known as post-traumatic stress disorder secondary to military sexual trauma caused by molestation
* the trauma and embarrassment caused his disciplinary problems
* he was too embarrassed to confront/see his perpetrator on a daily basis
* he was injured and molested through no fault of his own but still served honorably

3.  The applicant provides his Department of Veterans Affairs Rating Decision.

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 5 May 1977 and he held military occupational specialty 91C (Clinical Specialist).  He was assigned to Fort Devens, MA, and he attained the rank/grade of private/E-2.

3.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on:

* 7 October 1977, for failing to go at the time prescribed to his appointed place of duty
* 15 March 1978, for failing to go at the time prescribed to his appointed place of duty
* 27 April 1978, for failing to go at the time prescribed to his appointed place of duty and being derelict in his duty (failing to secure his weapon)
* 23 June 1978, for being absent without authority from 27 to 29 May 1978

4.  On 1 August 1978, the applicant's immediate commander notified him that he intended to recommend his discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program (EDP)), by reason of lack of motivation, poor attitude, lack of self-discipline, and failure to demonstrate promotion potential.  The immediate commander noted that the applicant's duty performance was characterized by behavior that rendered him repeatedly subject to punitive action.

5.  On 1 August 1978, the applicant acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army, the effect on future enlistment in the Army, the possible effects of a general discharge, and the procedures and rights available to him.  He voluntarily consented to this discharge.  The applicant further acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge.  He also elected not to submit a statement in his own behalf.

6.  Subsequent to this acknowledgement, the applicant's immediate commander recommended issuance of a General Discharge Certificate.

7.  On 4 August 1978, he underwent a mental status evaluation and he was found to have met retention standards.

8.  On 4 August 1978, he also underwent a separation physical.  He noted a left knee injury but claimed to be in otherwise good health.  The examining physician found him medically qualified for separation.

9.  On 29 August 1978 subsequent to a review by the Command Judge Advocate for legal sufficiency, the separation authority approved the applicant's discharge under the provisions of paragraph 5-37 of Army Regulation 635-200 by reason of failure to meet acceptable standards for continued military service and directed receipt of a General Discharge Certificate.  On 6 September 1978, the applicant was discharged accordingly.  His DD Form 214 shows he completed 1 year, 4 months, and 2 days of active military service.

10.  On 30 June 1981, the Army Discharge Review Board found his discharge was proper and equitable and, as such, denied his petition for an upgrade of his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, 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.  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.

12.  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 contends that his discharge should be upgraded.

2.  The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel for continued military service.  Accordingly, his immediate commander initiated separation action against him.  More importantly is the fact that he voluntarily consented to his discharge.

3.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation therefore were appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.

4.  The conditions (injury and molestation) he described in relation to his discharge are noted; however, he was found medically qualified for retention and/or separation, and for the other issue, there were other legitimate avenues he could have used to resolve this issue had he chosen to pursue them.  He has not shown error, injustice, or inequity for the relief he requests.  Therefore, the applicant is not entitled to an honorable 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)                                         AR20110023350



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ABCMR Record of Proceedings (cont)                                         AR20110023350



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