IN THE CASE OF:	 

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090014734 


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 under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was informed that there was no statute of limitations on when he could request an upgrade of his discharge.  He contends that his discharge should be upgraded because enough time has passed.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) as documentary evidence in support of this 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's record shows he enlisted in the Regular Army and entered active duty on 22 January 1974.  He completed basic combat training and advanced individual training (AIT).  Upon completion of AIT he was awarded military occupational specialty 13B (Field Artillery Crewman).  The highest rank and grade the applicant attained during his military service was corporal (CPL)/pay grade E-4.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 15 August 1974 for violating Article 86 of the UCMJ by departing his appointed place of duty in an absent without leave status.

4.  The applicant's record also reveals that he was arrested by civil authorities on 31 March 1976 for conspiring to deliver a controlled substance, possession of a controlled substance, and distribution of a controlled substance.  On 24 May 1972, the applicant pleaded guilty to the possession charge and the remaining charges were dropped.  He was sentenced to three days in jail and given three years probation.

5.  On 21 and 22 June 1976, the applicant's immediate commander counseled him for his poor attitude, lack of motivation, lack of promotion potential and provided him information (requested by the applicant) on the Expeditious Discharge Program (EDP).  The commander advised the applicant that unless he took positive action to correct his deficiencies, consideration would be given to separate him from the service and that such an action could result in the issuance of an undesirable discharge certificate.  He informed the applicant that issuance of a less than honorable discharge could preclude his eligibility for many or all veteran's benefits and he could expect to encounter substantial prejudice in civilian life.

6.  On 6 July 1976, the applicant's immediate commander notified the applicant of his intent to initiate action to discharge him from the Army under the provisions of the EDP.  The commander stated several reasons for this action:  the applicant's performance indicated that he was not motivated to perform his job, he could not work within a chain of command and follow orders from his superiors, he had not performed at a level commensurate with his rank, he showed no trace of being a leader and had little or no promotion potential, and he failed to respond to counseling.  The commander also informed the applicant that he intended to recommend that he receive a General Discharge Certificate and advised him of his rights to consult with legal counsel to discuss the ramifications of this recommendation and to submit a statement in his own behalf, to decline the discharge, or to waive any of the aforementioned rights.

7.  The applicant's Enlisted Evaluation Report for the period ending July 1976 shows his rating chain opined that he demonstrated minor shortcomings in the performance of his assigned duties, that he had no potential for advancement, that he should be denied continued active duty service, and he should be discharged as soon as possible.

8.  On 9 July 1976, the applicant acknowledged receipt of the commander’s notification of intent to separate him under the provisions of the EDP.  He consulted with legal counsel and was advised of the basis for the contemplated separation from the Army under the provisions of chapter 5 of Army Regulation 635-200, the effect on his future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  The applicant voluntarily consented to this separation action.  He acknowledged he understood that if he were issued a General Discharge Certificate he could expect to encounter substantial prejudice in civilian life.  He also declined to submit a statement on his own behalf.

9.  On 9 July 1976, the applicant's immediate commander recommended that he be discharged under the provisions of the EDP.

10.  On 13 July 1976, the separation authority approved the applicant's discharge and directed that he be furnished a DD Form 257A (General Discharge Certificate).

11.  On 16 July 1976, the applicant was discharged.  The DD Form 214 he was issued at the time confirms he completed a total of 2 years, 5 months, and 22 days of creditable active military service and he had 3 days of lost time.

12.  There no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

13.  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 under the EDP.  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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his general discharge under honorable conditions should be upgraded to an honorable discharge was carefully considered.

2.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

3.  The evidence of record shows the applicant voluntarily consented to be discharged under the EDP.  His discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Considering all the facts of the case, the type of discharge directed and the reason for separation were appropriate.

4.  The applicant's record of service shows he displayed an inability to adjust to the regimentation of military life as reflected by his lack of response to counseling regarding his poor attitude, and lack of motivation.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct or performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.


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)                                         AR20090014734





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ABCMR Record of Proceedings (cont)                                         AR20090014734



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