BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100010978 


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 his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  He states, in effect, his discharge was unjust because it was based upon personal reasons.  He also states he was advised he could request an upgrade of his discharge to honorable 6 months after his discharge date.

3.  He provides no 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.  His record shows he enlisted in the Regular Army on 10 March 1976.  Upon completion of initial entry training, he was awarded military occupational specialty (MOS) 11E (Armor Crewman).  At a later date, he reclassified to MOS 19F (Tank Driver).  The highest rank/pay grade he attained during his military service was specialist four/E-4.

3.  His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for the following offenses:

* Disobeying a lawful order from a superior noncommissioned officer
* Being disrespectful in language toward a superior noncommissioned officer

4.  On 5 January 1978 he was arrested by civil authorities for possession of a controlled substance (marijuana).  He pleaded guilty to the possession charge and paid a fine in lieu of serving 30 days in confinement.

5.  On 23 January 1978, he was issued a Field Grade Letter of Reprimand for driving in excess of the speed limit.

6.  On 10 July 1978, he received rehabilitative transfer from one company to another within his battalion.

7.  On 13 November 1978, he was counseled by his battalion chaplain regarding his desire to be discharged from the Army.  The chaplain opined that he did not display the predictable and responsible behavior necessary for a Soldier.  The chaplain also opined he showed a lack of ability to handle his personal financial affairs and consistently incurred debts he was unable to repay; which was worsened by his lack of motivation or ability to responsibly negotiate with his creditors.

8.  On 2 January 1979, the applicant's immediate commander notified him of his intent to initiate action to discharge him from the Army under the provisions of the Expeditious Discharge Program (EDP).  The commander stated several reasons for this action:  poor duty performance; frequent incidents with civil authorities; and lack of self discipline.  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.  The commander also informed him that he intended to recommend 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.

9.  On 2 January 1979, he 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.

10.  On 2 January 1979, his immediate commander recommended that he be discharged under the provisions of the EDP.

11.  On 2 January 1979, the separation authority approved his discharge and directed that he be furnished a DD Form 257A (General Discharge Certificate).

12.  On 5 January 1979, he was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he completed a total of 2 years, 9 months, and 25 days of creditable active military service and he had 1 day of lost time.  This form also shows:

* he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31 with a Separation Program Designator (SPD) code of JGH and a Reenlistment Eligibility code of 3, 3b
* his service was characterized as under honorable conditions
* he was issued a DD Form 257A

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

14.  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.

15.  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.  His record reveals a disciplinary history that includes:

* acceptance of NJP under the provisions of Article 15 of the UCMJ on two occasions
* receipt of a Letter of Reprimand
* arrest and confinement by civil authorities for possession of marijuana

4.  The evidence of record shows he 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.


5.  His 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, his service clearly does not meet the standards of acceptable conduct or performance of duty for Army personnel.  Therefore, he 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)                                         AR20100010978





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ABCMR Record of Proceedings (cont)                                         AR20100010978



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