IN THE CASE OF:	  

		BOARD DATE:  2 October 2012

		DOCKET NUMBER:  AR20120005544 


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 believes his service was good and he performed his duties well.  He believes his character of service should be honorable.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and a résumé.

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 30 July 1973 in the rank/grade of private (PV1)/E-1.  He held military occupational specialty 76Y (Unit Supply Specialist).  On 30 November 1973, he was promoted to private (PV2)/E-2.  On 5 June 1974, he was assigned to Company A, 4th Supply and Transport Battalion, Fort Carson, CO.

3.  On 22 November 1974, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph
5-37, for his failing to demonstrate he had the potential to justify advancement to private first class (PFC)/E-3 after attaining the normal time in service and time in grade requirements.  He had been counseled the previous 4 months for not being promoted to PFC/E-3.  The commander advised the applicant he was recommending separation with a general discharge and that he had the right to decline the discharge.

4.  On 25 November 1974, he acknowledged notification of the proposed discharge from the Army.  He was advised of the basis for the contemplated separation action, the possible effects of a general under honorable conditions discharge, and of the procedures and rights that were available to him.  He voluntarily consented to this discharge.  He further acknowledged he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.  He elected not to consult with legal counsel and elected not to submit a statement in his own behalf.

5.  On 25 November 1974, his senior commander recommended approval of the applicant's separation action.

6.  On 25 November 1974, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 5-37, with the issuance of a General Discharge Certificate.  On 27 November 1974, he was discharged accordingly.  He completed 1 year, 3 months, and 28 days of total active service.
The DD Form 214 he was issued at the time shows he was discharged in the rank/grade of PV2/E-2.

7.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  Army Regulation 635-200, paragraph 5-37, 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.

9.  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 evidence of record shows that after repeated counseling the applicant failed to demonstrate he had the potential for promotion to PFC/E-3.  Accordingly, his commander initiated separation action against him and he voluntarily consented to his discharge.

2.  In the absence of evidence to the contrary, it is presumed what the Army did in his case was appropriate and his separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation, therefore, appear to be appropriate.  As a result, 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)                                         AR20120005544



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ABCMR Record of Proceedings (cont)                                         AR20120005544



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