IN THE CASE OF: BOARD DATE: 25 June 2009 DOCKET NUMBER: AR20090005688 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 that his general discharge be upgraded to honorable. 2. The applicant states, in effect, that he believes the discharge is an error or unjust. He also contends that he was stricken with colon cancer and that he wants his discharge upgraded to honorable for personal integrity and for the honor of his deceased father. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); a copy of his DD Form 214 (Report of Separation from Active Duty); a copy of his father's DD Form 214 (Certificate of Release or Discharge from Active Duty) a traffic record; a criminal record report; a Certificate of Completion; a high school diploma; and a lifetime sportsman license in support of his application. 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 19 February 1976 for a period of 3 years. He successfully completed basic combat training and advanced individual training in military occupational specialty 64C (motor transport operator). 3. On 25 July 1976, nonjudicial punishment was imposed against the applicant for failure to repair. His punishment consisted of 14 days of extra duty. 4. On 17 August 1976, nonjudicial punishment was imposed against the applicant for two specifications of failure to repair. His punishment consisted of a reduction to E-1 and a forfeiture of pay. 5. On 28 August 1976, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-37, under the Expeditious Discharge Program. The unit commander based his recommendation for separation on the applicant’s poor attitude, inability to adapt emotionally, and failure to demonstrate promotion potential. 6. The applicant acknowledged notification of his proposed discharge, voluntarily consented to discharge from the Army, and elected not to make a statement on his behalf. He also acknowledged that he might expect to encounter substantial prejudice in civilian life if issued a general discharge and that he had been provided an opportunity to consult with counsel. 7. On 31 August 1976, a bar to reenlistment was imposed against the applicant. 8. On 31 August 1976, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge. 9. Accordingly, the applicant was discharged on 7 September 1976 with a general discharge under the provisions of Army Regulation 635-200, paragraph 5-37, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention. He had served 6 months and 19 days of total active service. 10. There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. 11. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. The pertinent paragraph in chapter 5 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. 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. A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge. 12. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. DISCUSSION AND CONCLUSIONS: 1. The applicant's separation under the Expeditious Discharge Program was voluntary and the evidence shows he voluntarily consented to the discharge. In addition, he acknowledged that he might expect to encounter substantial prejudice in civilian life if issued a general discharge. 2. The applicant's record of service included a bar to reenlistment and two nonjudicial punishments. As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge. 3. 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. He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so. 4. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 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) AR20090005688 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090005688 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1