IN THE CASE OF:	  

		BOARD DATE:	    8 May 2012

		DOCKET NUMBER:  AR20110022314 

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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states he was told his discharge would automatically be upgraded.  He now works for the Federal government at a Department of Veterans Affairs Hospital in East Orange, NJ.

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 13 February 1976.  Upon completion of initial entry training he was awarded military occupational specialty 76W (Petroleum Supply Specialist).

3.  On 10 January 1977, the applicant was notified by his unit commander that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph
5-37 (Expeditious Discharge Program (EDP)), with a General Discharge Certificate.  He cited as the reasons for the proposed action the applicant's apathy and his general attitude towards the Army and his duties.  Repeated counseling and efforts to guide him in the proper methods of fulfilling his obligation had failed to make any improvement in his actions or performance.  The applicant was also advised that he had the right to decline the discharge and that if he declined, and his subsequent conduct indicated that such action was warranted, he could be subject to disciplinary or administrative separation procedures under other provisions of laws or regulations.

4.  On 18 January 1977, having been advised by legal counsel, the applicant acknowledged the proposed discharge under the provisions of Army Regulation 635-200, paragraph 5-37 and voluntarily consented to the discharge action.  He understood that if he is issued a general discharge he may expect to encounter substantial prejudice in civilian life.  He further understood that prior to the date the discharge authority approves his discharge, he may withdraw his voluntary consent to the discharge.  He did not submit any statements in his own behalf.

5.  In a separate endorsement to the battalion commander, the applicant's unit commander indicated the applicant had received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on three occasions and that he had been counseled ten times.  He further indicated the reasons for the recommendation were the applicant's poor attitude and lack of motivation, lack of promotion potential, and frequent minor infractions of rules insufficient to warrant judicial action but indicative of immaturity and lack of self-restraint.

6.  On 28 January 1977, the appropriate authority approved the request for discharge under the provisions of Army Regulation 635-200, paragraph 5-37, with a General Discharge Certificate.  On 16 February 1977, the applicant was discharged accordingly.  He completed 1 year and 4 days of total active service.

7.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  Department of the Army began testing the EDP in October 1973.  In a message, dated 8 November 1974, the Deputy Chief of Staff for Personnel announced the expansion of the EDP.  The program provided for the separation of Soldiers whose acceptability, performance of duty, and/or potential for continued effective service fell below the standards required for retention in the Army.  Soldiers could be separated under this program when subjective evaluation by their commanders identified them as lacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failing to demonstrate promotion potential.  Soldiers had to consent to separation under this program in order for commanders to separate them under the provisions of the EDP.  Otherwise, a commander was required to separate Soldiers under other provisions of the regulation, which in most cases resulted in an other than honorable conditions discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 was separated in accordance with regulations governing those individuals who failed to demonstrate adequate potential for continued military service.

2.  He was notified of the reasons for his recommended separation and he was provided an opportunity to consult with legal counsel.  He authenticated a statement with his signature acknowledging he understood the prejudices associated with a general discharge and voluntarily consented to the separation.

3.  His administrative separation was accomplished in compliance with applicable regulations then in effect with no indication of procedural errors which would have jeopardized his rights.

4.  His record of indiscipline includes NJP on three occasions and ten counseling sessions in just over 1 year of active service.  Based on this record of indiscipline, his overall record of service did not support the issuance of an honorable discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  The Army has never had a provision for automatically upgrading discharges based solely on the passage of time.  Every case is individually decided based upon its merits when an applicant requests a change in the character of his or her discharge.

6.  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 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)                                         AR20110022314



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110022314



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1