RECORD OF PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:           December 2, 2003                 
	DOCKET NUMBER:   AR2003091014

	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	
	Mr. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Patrick H. McGann		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 be upgraded to honorable.

2.  The applicant offers no argument or evidence in support of his request for an upgrade of his discharge.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 3 August 1978.  The application submitted in this case is dated 27 February 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 enlisted in Milwaukee, Wisconsin, on 3 August 1977, for a period of 3 years, training as a combat engineer and assignment to Fort Campbell, Kentucky.  He completed his training at Fort Leonard Wood, Missouri, and was transferred to Fort Campbell on 14 November 1977.

4.  The applicant was arrested by civil authorities in Paducah, Kentucky, on 21 February 1978 and was confined for 1 day before being released to military authorities.  His commander directed that the 1 day absence be charged as lost time.

5.  On 10 April 1978, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order from a superior noncommissioned officer and for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

6.  On 14 July 1978, NJP was imposed against him for dereliction of duty.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

7.  On 19 July 1978, NJP was imposed against him for two specifications of failure to go to his place of duty and breaking restriction.  His punishment consisted extra duty and restriction (suspended for 30 days).

8.  On 28 July 1978, the applicant's commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 5-31, under the Expeditious Discharge Program, due to his inability to adapt to military life, his lack of self-discipline, poor attitude and performance.  The applicant was informed that he had the right to decline the discharge and that he could submit a statement in his own behalf.  The applicant consented voluntarily to accept the discharge and elected not to submit a statement in his own behalf.

9.  The commander submitted the recommendation for discharge indicating that the applicant should be discharged because of his recurring absences and lateness, his lack of self discipline as indicated by his civil conviction for theft by unlawful taking, his failure to respond to numerous counseling sessions and his substandard duty performance.  The appropriate authority approved the recommendation for discharge on 31 July 1978 and directed that the applicant be furnished a General Discharge Certificate.

10.  Accordingly, he was discharged under honorable conditions on 3 August 1978, under the provisions of Army Regulation 635-200, paragraph 5-31 and the Expeditious Discharge Program.  He had served 1 year and 1 day of total active service and had 1 day of lost time.

11.  There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  The Department of the Army began testing the Expeditious Discharge Program (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 fall below the standards required for retention in the Army.  Soldiers may be separated under this program when subjective evaluation of their commanders identifies 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.  Soldiers considered for separation under this expanded program had to agree to separation under this program.  Soldiers who did not agree to separation under this provision were not exempt from separation under another provision of the regulation.  An honorable or general discharge was required and there has never been any provisions for an automatic upgrade of a discharge less than fully honorable.

DISCUSSION AND CONCLUSIONS:

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 has failed to submit evidence that would satisfy this requirement.

2.  The applicant’s administrative discharge was accomplished in accordance with applicable regulations with no violations of the applicant’s rights.  Accordingly, his discharge and the reasons therefore were appropriate under the circumstances.

3.  Records show the applicant should have discovered the error or injustice now under consideration on 3 August 1978; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 3 August 1981.  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

_PM___  __MM__  __FE__      DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, 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.  

		Fred N. Eichorn
                                                        CHAIRPERSON

INDEX

CASE ID	AR2003091014	
SUFFIX		
RECON		
DATE BOARDED	2003/12/02	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	1978/08/03	
DISCHARGE AUTHORITY	AR635-200, CH5 . . . . .  	
DISCHARGE REASON	EDP	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.516	144.2900/A29.00	
2.		
3.		
4.		
5.		
6.