IN THE CASE OF:	 

		BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110022553 


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 under honorable conditions discharge to an honorable discharge.  

2.  He states he wants his discharge changed to honorable because his father passed away on 16 October 1976 and this really affected him.  Since that time he has become a better man.  

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

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 30 April 1980 for a period of three years.  Upon completion of initial entry training, he was awarded military occupational specialty 19D (Cavalry Scout).  He served in Korea from 19 August 1980 to 18 August 1981.  

3.  On 22 June and 9 September 1982, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully having in his possession some amount of marijuana and for being disorderly in conduct.

4.  The applicant's unit commander notified him of his proposed discharge action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31, Expeditious Discharge Program (EDP).  The unit commander cited the basis for the proposed actions as the applicant’s inability to adjust to the Army, he was not capable or had no desire to conform to discipline, no self-discipline, and showed no respect towards authority.  The applicant was advised of his rights.  He acknowledged notification of the separation action and he did not consult with legal counsel or submit statements in his own behalf.  

5.  The separation authority approved separation action under the provisions of Army Regulation 635-200, paragraph 5-31 with the issuance of a General Discharge Certificate.  

6.  On 1 October 1982, he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, EDP due to failure to maintain acceptable standards for retention.  He completed 2 years, 5 months, and 2 days of active military service.

7.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Paragraph 5-31 of this regulation, in effect at the time, governed the EDP.  This program provided that members who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated when they failed to respond to counseling:

* Poor attitude
* Lack of motivation
* Lack of self-discipline
* Inability to adapt socially or emotionally
* Failure to demonstrate promotion potential

Under this regulation, a general or an honorable discharge was authorized, as appropriate.  

9.  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 statements regarding the death of his father affecting him are acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct which led to his discharge.  

2.  His statement regarding his post service conduct is also acknowledged.  However, good post service conduct alone is not a basis for upgrading a discharge.

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

4.  His service record shows he received two Article 15s, for wrongfully possessing some amount of marijuana and for being disorderly in conduct.

5.  It appears the applicant's chain of command determined his overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general under honorable conditions.  

6.  He has failed to show through the evidence submitted or the evidence of record that the type of discharge he received was in error or unjust.  Therefore, there is no basis for changing his discharge to honorable.  



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)                                         AR20110022553





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ABCMR Record of Proceedings (cont)                                         AR20110022553



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