MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            1 February 2001
	DOCKET NUMBER:   AR2000045384

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

	Mr. W. S. Chun		Director	
	Ms. Antoinette E Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Barbara J. Lutz		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, that his general discharge (GD) be upgraded to an honorable discharge (HD), thereby allowing him to receive veteran’s benefits.

APPLICANT STATES:  In essence, he states that he sought the help of his Congressman and clergy in getting out of the service because his mother had become mentally ill and had to be hospitalized.  He had to arrange for psychiatric help for her because she was suicidal and his other siblings were too far away or “didn’t care”.  Further, he points out that his military record before this situation was without blemish.  He claims that he does not remember exactly what happened during the time-period that led up to him being separated with a GD.  He only remembers that he wanted to be discharged in order to provide the necessary care for his mother.  In support of his case, he provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 14 September 1976.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 3 October 1975.  He completed both his basic training and advanced training in military occupational specialty (MOS) 12B10 (Combat Engineer) at Fort Leonard Wood, Missouri.  He was then assigned to Fort Knox, Kentucky for duty in his MOS on 2 February 1976.

On 5 August 1976, the applicant received nonjudical punishment (NJP) under the provisions of Article 15, Uniform Code Military Justice, for being absent without leave from 6 July to 5 August 1976.  His punishment included forfeiture of $150.00 pay per month for 2 months, suspended and restriction and extra duty for 45 days. 

On 3 September 1976, his commander notified him that he was being recommended for discharge under the provisions of Army Regulation 635-200, paragraph 5-37, for failure to maintain acceptable standards for retention in accordance with the Expeditious Discharge Program (EDP).  A GD was being recommended.  The commander cited the applicant's inability to cope with military life, to maintain military bearing as a soldier, allowing personal and family problems to interfere with military duty, and being AWOL for a period of 30 days as the bases for the separation action.  

On the same day, the applicant received a mental status evaluation and a physical evaluation, which cleared him for separation.

On 8 September 1976, the applicant acknowledged notification, that he understood the rights available to him and that he voluntarily consented to the discharge.  The applicant consulted with legal counsel and declined to make a statement in his own behalf.  

On 10 September 1976, the separation authority approved the recommendation and directed the issuance of a GD under the provisions of Army Regulation 635-200, paragraph 5-37, for failure to maintain acceptable standards for retention (EDP), with a GD. 

On 14 September 1976, the applicant was separated with a GD under the provisions of Army Regulation 635-200, paragraph 5-37, for failure to maintain acceptable standards for retention (EDP).  He had completed a total of 11 months and 14 days of creditable service, with 29 days lost time due to AWOL.  He had 12 days of excess leave.  The highest grade he attained was pay grade E-2.  

Army Regulation 635-200, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 5-37 of that regulation provided, in pertinent part, for the separation of individuals determined to clearly be substandard performers under the EDP.  This paragraph provided for the separation of those individuals who obviously could not adjust to the Army environment, and/or those who responded initially, but within a short period of time demonstrated that they were incapable of permanent adjustment.  Under this regulation, a GD or an HD was considered appropriate.  Further, the regulation stated that no individual would be given a GD by the separation authority unless the commander initiating the action for separation recommended it and the soldier had the opportunity to receive legal counsel.

There is no record that he ever submitted a request for review of his discharge by the Army Discharge Review Board within that board’s 15-year statute of limitation.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant therefore, has failed to submit evidence that would satisfy this requirement.

2.  The applicant's administrative separation under the EDP was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  The applicant’s substandard record of service fully supported the directed discharge action, as evidenced by his NJP action and repeated counseling.

3.  The applicant was properly notified of the discharge action, he clearly acknowledged this notification, stated that he understood the rights available to him and that he voluntarily consented to the EDP discharge.  The applicant also consulted with legal counsel and declined to make a statement in his own behalf. 

4.  While the Board has taken cognizance of the applicant’s contention that he was experiencing family problems, he has failed to provide any evidence except his statement as to his problems.  The Board concludes that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the offenses which led to the separation action under review.

5.  Therefore, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

6.  Determination of entitlement to veteran benefits does not rest with this Board, rather it rests with the Department of Veterans Affairs.  The applicant is advised to contact that agency on these matters.

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

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__sll____  __jea____  ___bjl ___  DENY APPLICATION

Carl W. S. Chun
Director, Army Board for Correction
of Military Records

INDEX

CASE ID	AR2000045384	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000201	
TYPE OF DISCHARGE	GD/EDP	
DATE OF DISCHARGE	19760914	
DISCHARGE AUTHORITY	AR 635-200, par 5-37 .  .  .  .  .  	
DISCHARGE REASON	Failure to maintain acceptable standards for retention (EDP)	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY	Director	
ISSUES         1.	A24.00	
2.	A01.35	
3.	A126.00	
4.	A123.01	
5.		
6.