IN THE CASE OF:	  

		BOARD DATE:  7 February 2012

		DOCKET NUMBER:  AR20110014694 


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 an upgrade of his general discharge to honorable.

2.  The applicant states:

* no one would talk to him about his discharge
* since his discharge he has taken care of people for the past 25 years
* he worked hard while on duty but it was his night life that got him in trouble
* one night while drinking he got into a fight with a bunch of military police and he took a beating
* after getting in trouble with his commanding officer he went out and ran into some of the guys that fought him
* they knew he was going to testify against them and they intimidated him
* he asked to be discharged which he regrets to this day
* he does not drink anymore and he has been in the human service field for 25 years giving back to his community

3.  The applicant provides no additional 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 enlisted in the Regular Army on 15 February 1980 for a period of 3 years.  He completed his training and was awarded military occupational specialty 76C (equipment records and parts specialist).

3.  Between 3 February 1981 and 5 April 1982, nonjudicial punishment (NJP) was imposed against him on five separate occasions for:

* assault
* being absent without leave
* conspiring to make a false official statement
* failing to obey two lawful orders
* being drunk and disorderly in public
* failing to repair

4.  On 1 September 1982, the applicant was notified of his pending separation under the Expeditious Discharge Program for failure to maintain acceptable standards for retention under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-31.  The unit commander recommended separation with a general discharge and cited the applicant's:

* lack of motivation and self discipline
* inability to adapt socially or emotionally to Army life
* failure to demonstrate promotion potential

5.  On 1 September 1982, the applicant acknowledged notification of his proposed discharge, voluntarily consented to the separation, and elected not to make a statement on his behalf.  He also acknowledged he might expect to encounter substantial prejudice in civilian life if issued a general discharge and he had been provided an opportunity to consult with counsel.

6.  On 10 September 1982, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

7.  He was accordingly discharged on 22 September 1982 under the Expeditious Discharge Program for failure to maintain acceptable standards for retention under the provisions of Army Regulation 635-200, paragraph 5-31.  He completed a total of 2 years, 7 months, and 8 days of total active service.

8.  There is no evidence in the available records that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, in effect at the time, 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 could be discharged.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  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.

10.  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.  Paragraph 3-7b provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  He contends no one would talk to him about his discharge.  However, the evidence shows he was provided an opportunity to consult with counsel on 1 September 1982.

2.  He contends he has been giving back to his community for the past 25 years.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  His record of service included five NJP's.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

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)                                         AR20110014694



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ABCMR Record of Proceedings (cont)                                         AR20110014694



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