IN THE CASE OF:	  

		BOARD DATE:	    15 March 2010

		DOCKET NUMBER:  AR20100023175 


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, an upgrade of his general discharge (GD) to an honorable discharge (HD). 

2.  He states:

* he was told his GD would later upgraded to an HD
* he received a GD because he departed the service before his time was completed
* he "recently applied for a section 8" and he was denied for not having an HD

3.  He provides a copy of his DD Form 257A (General Discharge Certificate). 

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 for a period of 4 years on 16 August 1977.  After completing initial entry training, he was awarded military occupational specialty 05B (Radio Operator).

3.  On 13 March 1979, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully having in his possession a pipe containing marijuana residue in the stem.

4.  An AE Form 113-10-R (Notification of Pending Expeditious Discharge Program (EDP) Discharge and Acknowledgment) shows, on 8 November 1979, his commander notified him he was initiating action to discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31, with a GD.  His commander stated the reasons for the proposed action were his inability to adapt socially or emotionally to the military environment.  He further stated if the applicant was allowed to continue on active duty disciplinary action or elimination proceedings under other than honorable conditions may become necessary.  

5.  The applicant checked and initialed the box indicating he voluntarily consented to the discharge.  He also acknowledged with his signature that he understood:

* if he was issued a GD under honorable conditions he may expect to encounter substantial prejudice in civilian life
* he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps
* he could withdraw his voluntary consent prior to the date the discharge authority approved the discharge

6.  A memorandum from his commander to the separation authority recommending his elimination shows he received NJP on one occasion and he had been counseled on three occasions.  The record does not include documentation showing why he was counseled.  

7.  On 27 November 1979, the separation authority approved his discharge action and directed that he be issued a General Discharge Certificate.  On 7 December 1979, he was discharged accordingly, and his service was characterized as under honorable conditions.  He completed 2 years, 4 months, and 22 days of total active service.

8.  The record does not show he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Paragraph 5-31 of Army Regulation 635-200, then in effect, provided for the EDP.  This program provided for the discharge of individuals who had completed at least 6 months but less than 36 months of active duty and who demonstrated by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential that they could not or would not meet acceptable standards.  No member could be separated under the EDP without his or her voluntary consent.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel.

10.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part, 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 evidence of record does not support the applicant's request for an upgrade of his GD to an HD.

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 submits an application requesting a change in discharge.

3.  His discharge proceedings were conducted in accordance with law and regulations applicable at the time.  He voluntarily consented to separation under the EDP and he was fully aware his commander had recommended that he be issued a GD.  The available documentation shows no evidence of an error in the processing of his discharge or the characterization of his service.  

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for benefits.

5.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20100023175



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ABCMR Record of Proceedings (cont)                                         AR20100023175



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