IN THE CASE OF:	  

		BOARD DATE:	  26 July 2012

		DOCKET NUMBER:  AR20120002461 


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 (GD) to an honorable discharge (HD).

2.  He states he hurt his back on duty and "the doctor" would not help him.  He now has a 60 percent (%) service-connected disability rating from the Department of Veterans Affairs (VA) and he is unemployable.

3.  He provides a VA 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 enlisted in the Regular Army (RA) on 25 February 1976.  After completing initial entry training, he was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) from 5 through 21 October 1976 and from 29 November 1976 through 1 January 1977.

4.  His record includes an AFZP Form 0091 (Article 15 Punishment) that shows he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 30 November 1976 through 2 January 1977.

5.  On 4 January 1977, the applicant's commander informed him he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program (EDP)), and that he was recommending he receive a GD Certificate.  His commander stated the reasons for the proposed action were the applicant's poor attitude, lack of motivation, lack of self-discipline, failure to demonstrate promotion potential, and his inability to adapt to the military.  The commander informed the applicant he could expect to encounter substantial prejudice in civilian life as the result of issuance of a GD.  He was also informed of his right to consult with counsel, to decline the discharge, and to submit a statement in his own behalf.

6.  On 6 January 1977, he acknowledged notification of his proposed discharge and voluntarily consented to the discharge.  He elected not to submit statements in his own behalf, and he acknowledged he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps.  He further indicated he understood he could withdraw his voluntary consent to the discharge prior to the date of its approval by the discharge authority, and that if he declined to accept the discharge voluntarily, he could be subject to separation under other provisions of law or regulation.

7.  A Standard Form (SF) 88 (Report of Medical Examination) shows he underwent a separation medical examination on 6 January 1977.  The form shows no finding of a back injury.  Item 73 (Notes and Significant or Interval History) shows the handwritten entry "Good Health" above the applicant's signature.  The examining physician found him qualified for separation.

8.  On 26 January 1977, the separation authority approved his discharge and directed he receive a GD Certificate.


9.  On 28 January 1977, he signed a Fort Stewart (FS) Form 3429 (Statement of Medical Condition) acknowledging he had last been examined on 17 January 1977 and there was no change in his medical condition since that time.

10.  On 2 February 1977, he was discharged under the provisions of Army Regulation 635-200, paragraph 5-37 with a GD Certificate.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 9 months and
17 days of total active service with 51 days of time lost due to being AWOL.

11.  His record is void of documentation showing he injured his back during his RA service.  

12.  He provides a VA Rating Decision, dated 29 January 2010, that shows he received a 60% service-connected disability rating from 9 December 1991 for status post-L4 laminectomy with L5 foraminotomy (spinal surgery).

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 5-37 of the version in effect at the time provided for the EDP.

		(1)  The EDP authorized discharge of individuals with at least 6 months but not more than 36 months of continuous active duty who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of one or more of the following:  (1)  poor attitude, (2)  lack of motivation, (3)  lack of self-discipline, (4)  inability to adapt socially or emotionally, (5)  failure to demonstrate promotion potential 

		(2)  Discharge under the EDP required an individual's voluntary consent.  A GD could not be issued unless the individual was given the opportunity to consult with appointed counsel.

	b.  Paragraph 3-7a provides that an HD 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 evidence of record does not support the applicant's request for upgrade of his discharge.
2.  He voluntarily consented to discharge under the EDP.  The record shows all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He had the opportunity to make a statement voicing his concerns at the time of his separation processing and failed to do so.

3.  He received NJP, and the record shows he was AWOL for 51 days.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD.

4.  It appears he believes the 60% service-connected disability rating he received from the VA should be considered as a basis for upgrading his discharge.  A VA service-connected disability rating awarded many years after an individual's discharge has no bearing on that individual's character of service issued at the time of his/her separation.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20120002461



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ABCMR Record of Proceedings (cont)                                         AR20120002461



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