PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           4 November 1999                   
	DOCKET NUMBER:   AR1999026899

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Hubert O. Fry, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his records be corrected to show he has veteran’s status.

3.  The applicant states that he was discharged for failure to maintain acceptable standards.  If being promoted three times with waivers is not up to military standards, what is?  He did not want to get out.  He received a direct order to sign the discharge papers.  Supporting evidence is as listed on the attachment to the DD Form 149.

4.  The applicant's military records show he enlisted in the Regular Army on      16 September 1980.  He completed basic training and advanced individual training (AIT) and was awarded military occupational specialty 64C (Motor Transport Operator.)

5.  On 1 December 1980, while in AIT, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice for disobeying a lawful order (not to smoke in the building).  

6.  On 6 January 1981, the applicant was assigned to Company B, 303d Military Intelligence Battalion, Vint Hill Farms Station, VA.  On 16 March 1981, he was advanced to Private, E-2.  On 26 May 1981, he was advanced to Private First Class, E-3.

7.  On 30 September 1981, the applicant accepted NJP under Article 15, UCMJ for being disrespectful in language towards his superior non-commissioned officer.  

8.  On 1 January 1982, the applicant was advanced to Specialist Four, E-4.

9.  On 1 April 1982, the applicant was reassigned to the 166th Military Intelligence Company, Vint Hill Farms Station, VA.  

10.  On 12 July 1982, the applicant’s commander initiated separation proceedings under the provisions of Army Regulation 635-200, chapter 5, Expeditious Discharge Program.  He cited the applicant’s history of belligerent behavior, disrespect and insubordination while a member of the unit; his citations in Military Police reports for traffic violations, disorderly conduct and aggravated assault upon a military policeman; and his counselings, both verbally and in writing, concerning his lack of discipline, disrespect and insubordination and for being absent from and tardy to formations.

11.  On 13 July 1982, the applicant acknowledged notification of the separation action.  There is no evidence that he voluntarily consented to the discharge.  He submitted statements in his own behalf.  What he included were several statements of support.  (One of the support statements includes the statement “____has been late or has missed formations on occasion…has a hard time controlling his temper and this has caused him problems in the past.”  Another includes the statements “___has been late for formations numerous occasions…does not take constructive criticism well…has been very boisterous and almost insubordinate to the officers and NCOs of the company.  _____many good qualities but his attitude and temper tend to override these.”)

12.  On 20 July 1982, the appropriate authority approved the recommendation.  He provided no instructions on the type of discharge to be given.

13.  On 4 August 1982, the applicant was discharged, in pay grade E-4, under the provisions of Army Regulation 635-200, Chapter 5, Expeditious Discharge Program - failure to maintain acceptable standards for retention.  The DD Form 214 shows he received an honorable characterization of service.  He had completed 1 year, 10 months and 19 days of creditable active service and had no lost time.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in Chapter 5 provides that members who have completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who have demonstrated that they cannot or will 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.  It provides for the expeditious elimination of substandard, nonproductive soldiers before board or punitive action becomes necessary.  No member will be discharged under this program unless he/she voluntarily consents to the proposed discharge.  Issuance of an honorable discharge certificate is 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 is not sufficiently meritorious to warrant an honorable discharge.

15.  At the time, Chapter of 13 of Army Regulation 635-200 contained the policy and outlined the procedures for separating an individual for unsuitability when it was clearly established that it was unlikely that he would develop sufficiently to participate in further military training and/or become a satisfactory soldier.  Paragraph 13-4c provided for the separation of individuals for apathy, defective attitudes, and inability to expend effort constructively.

16.  In determining eligibility for certain benefits, such as home loan guarantees, the VA requires a member have completed 24 months of continuous active duty in order to be determined to be a “veteran.”
CONCLUSIONS:

1.  The Board concludes that a Government error did occur in this case.

2.  Separation under the Expeditious Discharge Program required the member’s voluntary consent.  Additionally, the sample notification (Figure 5-3) and acknowledgement of notification (Figure 5-4) in Army Regulation 635-200 advise the soldier of the requirement to consent.  These advisals were improperly omitted from the notification and acknowledgement in this case.  It also appears the applicant submitted rebuttal character statements supporting his retention on active duty during the processing of the discharge.

3.  The Board concludes that the applicant did not and would not have voluntarily consented to his discharge under this Program and so has met the burden of proof that the discharge was improperly conducted.  The Board also concludes, however, that his record of service, despite any promotions his previous commander may have given him, provided the basis for the commander of the 166th Military Intelligence Company to initiate involuntary separation action under the provisions of Army Regulation 635-200, Chapter 13 for unsuitability.  

4.  The Board concludes that the applicant’s commander would have initiated this separation action immediately upon the applicant disagreeing with his Chapter 5 discharge.  As a matter of equity, the Board presumes it would have taken the commander approximately 60 days to complete processing this action and that therefore the applicant would have been separated on or about 15 September 1982.  

5.  A separation date of 15 September 1982 would have given the applicant        2 years of active service upon his separation.  However, the VA is the final determiner of what constitutes a “veteran,” not the Department of Defense.

6.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing:

     a.  that the applicant’s honorable discharge on 4 August 1982 is void and of no force or effect; and

     b.  that the applicant was discharged on 15 September 1982, after completing 2 years of active service, with an honorable characterization of service, under the provisions of paragraph 13-4c, Army Regulation 635-200, separation code JMJ, reenlistment code RE-3, for Unsuitability – apathy, defective attitude or inability to expend effort constructively.

2.  That the Department issue to him an Honorable Discharge Certificate from the Army of the United States, dated 15 September 1982, in lieu of the Honorable Discharge Certificate of 4 August 1982 now held by him.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__eb____  __aao___  __hof___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Elizabeth Buchanon
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999026899	
SUFFIX		
RECON		
DATE BOARDED	19991104	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.01	
2.	110.02	
3.		
4.		
5.		
6.