BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100026813 


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 an honorable discharge.

2.  The applicant states that while there is no error in his discharge he is old now and would like to have full Department of Veterans Affairs benefits.

3.  The applicant provides no additional evidence 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.  His military records show he enlisted in the Regular Army on 17 October 1975.  He completed initial entry training and was awarded the military occupational specialty of cannon crewman.  The highest rank/grade he attained was private first class/E-3.

3.  He was counseled for failing to pay just debts, refusing to report for duty, and failing to obey orders. 

4.  He accepted nonjudicial punishment (NJP) on four separate occasions for failing to go at the time prescribed to his appointed place of duty (twice), failing to obey a lawful order (twice), being disrespectful in language toward a superior noncommissioned officer (NCO), and assaulting a superior NCO by striking him in the arm with a breech block closing spring.

5.  On 23 September 1977, his commander informed him that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37, under the Expeditious Discharge Program (EDP).  The reasons stated for the proposed action were that the applicant had failed to demonstrate self-discipline as evidenced in several instances of disobeying a lawful order, by assaulting an NCO, and by being disrespectful to an NCO.  He added that the applicant had also received NJP several times for failing to repair.  He further indicated the applicant had been counseled for failing to pay just debts, refusing to report for duty, and disrespecting an NCO.  He added that the applicant's attitude was poor, that he showed little desire to do his tasks within his section without constant supervision, and that he failed to demonstrate promotion potential.

6.  On 23 September 1977, he acknowledged notification of his proposed separation and indicated he voluntarily consented to discharge from the U.S. Army.  He elected not to submit a statement in his own behalf.  He further acknowledged he understood if he were issued a general discharge under honorable conditions, he might expect to encounter substantial prejudice in civilian life.  He further acknowledged he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps.

7.  On 20 October 1977, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 5.

8.  On 28 October 1977, he was discharged accordingly.  The DD Form 214 he was issued at that time shows he completed 1 year, 11 months, and 25 days of creditable active service with 18 days of lost time.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
10.  Army Regulation 635-200, paragraph 5-37, in effect at the time, provided that members who had demonstrated they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions, may be discharged for:

* poor attitude
* lack of motivation
* lack of self-discipline
* inability to adapt socially or emotionally
* failure to demonstrate promotion potential

11.  These provisions were intended to relieve unit commanders of the administrative burden normally associated with processing eliminations for cause through administrative separation boards by providing a means to separate such personnel expeditiously before they progress to the point where board or punitive action became necessary.

12.  Members separated under the EDP could be awarded a character of service of honorable or under honorable conditions, as appropriate.

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.

DISCUSSION AND CONCLUSIONS:

1.  He received NJP on four occasions for offenses including twice failing to go at the time prescribed to his appointed place of duty, twice failing to obey a lawful order, being disrespectful toward a superior NCO, and assaulting a superior NCO.  He also had been counseled for failing to pay just debts, refusing to report for duty, and disrespecting an NCO.

2.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  The evidence shows he was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.
4.  The ABCMR does not grant requests to upgrade discharges solely for the purpose of making the applicant eligible for veterans' or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20100026813



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ABCMR Record of Proceedings (cont)                                         AR20100026813



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