RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  18 November 2003
	DOCKET NUMBER:  AR2003086075

	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. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Mark D. Manning		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his general discharge (under honorable conditions) be upgraded to honorable.

2.  The applicant states that he served from June 1973 to March 1976 and received a general discharge under honorable conditions.  His discharge was granted to him because of foolish things that he admitted to while serving on active duty.  His stupidity revolved around the use of drugs.  He was an impressionable teenager who got involved with the wrong group of individuals who where serving out their post-Vietnam days.  Since his separation from the service, he has never used any type of illegal drugs.  He has become a productive citizen and has been highly regarded and respected while involved in community activities.  He is currently unemployed due to his discharge.  He is not disputing the fact that he was foolish as a teenager; however, his record as an adult in civilian life has been impeccable. He is now asking for forgiveness and that his discharge be upgraded in order to better serve his country.

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

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of injustice which occurred on 13 April 1976, the date of his discharge.  The application submitted in this case is dated 27 January 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.   The applicant's military records show he enlisted on 13 June 1973, as a fire control computer repairman.  He was promoted to pay grade E-4 effective 1 June 1975. 

4.  Between 23 July 1975 and 15 March 1976, he received nonjudicial punishment (NJP) on four occasions under Article 15, Uniform Code of Military Justice (UCMJ), for failure to be at his appointed place of duty, for being drunk and disorderly on two occasions, and for being incapacitated.   His punishments consisted of forfeitures of pay, reduction to pay grade E-3 and E-2, restriction, and extra duties.

5.  The applicant underwent a separation medical examination on 18 February 1976, and was found qualified for separation.

6.  On 17 March 1976, the applicant’s commander submitted a recommendation to separate the applicant from the service under the provisions of Army Regulation 635-200, paragraph 5-37, Expeditious Discharge Program (EDP).  He cited, as the basis for his recommendation, the applicant’s complacency in his duty performance and apathetic attitude.  

7.  After consulting with counsel, he consented to the proposed discharge action
and elected to submit a statement in his own behalf.  He stated that he realized that he had received NJP on four occasions and should not be discharged.  His commander indicated that he had an attitude towards the Army.  His NJP began when the new commander arrived a year ago.  He did not feel that his conduct had been that bad due to the new commander's arrival.  He had previously requested an expeditious discharge 2 years ago but was denied.  At that time, he had approximately 70 days until his expiration of term of service (ETS) and requests that he now receive an honorable discharge.

8.  On 24 March 1976, the separation authority approved the request for discharge and directed that he be furnished a General Discharge Certificate.  The applicant was discharged on 13 April 1976.  He had a total of 2 years,        10 months, and 1 day of creditable service.

9.  The Department of the Army began testing the EDP in October 1973.  In a message dated 8 November 1974 the Deputy Chief of Staff for Personnel announced the expansion of the EDP.  The program provided for the separation of soldiers whose acceptability, performance of duty, and/or potential for continued effective service fell below the standards required for retention in the US Army.  Soldiers could be separated under this program when subjective evaluation of their commanders identified them as lacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. 

10.  Army Regulation 635-200, chapter 5, in effect at the time, set forth the basic authority for the separation of enlisted personnel for the convenience of the government.  Separation under this chapter includes provisions for discharging soldiers for a variety of reasons including those who fail to maintain acceptable standards for retention (EDP).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons for that separation were appropriate considering all of the facts of the case.

3.  Careful consideration has been given to the applicant’s contentions; however, his contentions are not a sufficient basis to warrant an upgrade of his discharge.

4.  Records show the applicant should have discovered the error or injustice now under consideration on 13 April 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 13 April 1979.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__js____  ___be___  __mm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant an upgrade of his discharge, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		____John N. Sloan___
		        CHAIRPERSON

INDEX

CASE ID	AR2003086075	
SUFFIX		
RECON		
DATE BOARDED	20031118	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19760325	
DISCHARGE AUTHORITY	AR 635-200, 5-37, EDP	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	360	
2.		
3.		
4.		
5.		
6.