IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080007253 


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, in effect, that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he feels he should qualify for Department of Veterans Affairs (VA) medical benefits.

3.  The applicant provides no additional documentary evidence.  

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’s military service records show that he enlisted in the U.S. Army Reserve on 26 March 1976 and entered active duty in the Regular Army for a period of 4 years on 8 July 1976.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 51K (Plumber).

3.  The applicant's military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 20 July 1977 that shows non-judicial punishment was imposed against the applicant for assaulting an individual by striking him with fists, in violation of Article 128, UCMJ.  The punishment imposed was a forfeiture of $50.00 for 1 month.

4.  The applicant's military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 13 September 1977. This document shows that non-judicial punishment was imposed by the company commander against the applicant for, having knowledge of a lawful order issued by the company commander, to wit:  Unit Charge of Quarters Standard Operating Procedures, paragraph 10(a), dated 12 August 1977, an order which was the applicant’s duty to obey did, at Fort Wainwright, Alaska, on or about 0815 hours, 21 August 1977, fail to obey the same by having females in the barracks, this was in violation of Article 92, UCMJ.  The punishment imposed was a forfeiture of $99.00 for 1 month.

5.  On 4 October 1977, the applicant was notified by his company commander that separation action under the provisions of Army Regulation 635-200, Chapter 5 (Expeditious Discharge Program), was being initiated against him and that a general discharge was being recommended.  The reasons for the separation action cited by the company commander were the applicant’s lack of motivation, lack of self-discipline, failure to demonstrate promotion potential, and his substandard performance.  The company commander also noted that he had counseled the applicant 7 times concerning his deficiencies and the applicant had been punished under the provisions of Article 15, UCMJ, on 2 occasions.

6.  The applicant acknowledged that he received the separation notification, he voluntarily accepted discharge from the Army, and waived his right to submit statements in his own behalf.  The applicant also acknowledged that, if he received a general discharge, he understood its effects and that he could expect to encounter substantial prejudice in civilian life.  The applicant’s statement also shows he was provided counsel by a Judge Advocate General Corps officer.

7.  On 6 October 1977, the applicant’s company commander completed an endorsement forwarding the separation action to the approving authority.  The company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, Chapter 5, and furnished a General Discharge Certificate.  The colonel serving as Commander, Headquarters, Fort Wainwright, Alaska, approved the separation action and directed that the applicant receive a General Discharge Certificate.

8.  The DD Form 214 (Report of Separation from Active Duty), issued to the applicant on the date of his discharge (i.e., 17 October 1977), confirms that he was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 5-37, and he was issued Separation Program Designator (SPD) Code “JGH.”  This document also shows that, at the time of his discharge, the applicant was credited with completing 1 year, 3 months, and
10 days of net active service during the period of service under review.

9.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

10.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 5 provided the policy and outlined the procedures for separating individuals under the Expeditious Discharge Program (EDP).  The EDP provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army.  This document also shows, in pertinent part, an enlisted Soldier may be separated under the provisions of the EDP when they fail to respond to counseling for one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and/or failure to demonstrate promotion potential.  Paragraph 5-37 (Discharge for failure to demonstrate promotion potential) shows that personnel whose performance of duty, acceptability for the Service, and potential for continued effective service fall below standards required for enlisted personnel in the U.S. Army may be discharged.  An honorable discharge or general discharge could be issued under this program.  


12.  Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JGH” as the appropriate code to assign enlisted Soldiers involuntarily discharged under the provisions of Army Regulation
635-200, Chapter 5 (Expeditious Discharge Program), paragraph 5-37, based upon failure to demonstrate promotion potential.

13.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his general discharge under honorable conditions should be upgraded to an honorable discharge because he feels he should qualify for Department of Veterans Affairs medical benefits.

2.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met and the applicant’s rights were protected throughout the separation process.  The evidence of record further confirms that the applicant voluntarily consented to the discharge.  In addition, the evidence of record shows that the authority, narrative reason, and SPD Code recorded on the applicant’s discharge are valid.  

3.  The evidence of record shows that the applicant’s company commander recommended his discharge under the Expeditious Discharge Program based upon the applicant’s lack of motivation, lack of self-discipline, failure to demonstrate promotion potential, and his substandard performance.  In his recommendation for separation of the applicant, the company commander also noted that he had counseled the applicant 7 times concerning his deficiencies and that the applicant had been punished under the provisions of Article 15, UCMJ, on 2 occasions.  In addition, the evidence of record shows that the applicant completed less than 16 months of his 48-month enlistment commitment.  Thus, the evidence of record clearly shows the applicant’s relatively short record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

4.  As a matter of information and in response to the applicant’s request, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for employment or government benefits.

5.  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.

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)                                         AR20080007253



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ABCMR Record of Proceedings (cont)                                         AR20080007253



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