BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110023492 


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 under honorable conditions to a fully honorable discharge.

2.  The applicant states:

* He was wrongly charged with not reporting to muster formation when he was on quarters 
* He could not prove he was on quarters because the medical records just vanished
* He was influenced by others to drink at the time
* During a unit inspection, his sergeant ignored the quarters slip from the doctor and charged him with missing formation
* He has since lived a lifetime of pain and discomfort
* His discharge was illegal and was based on lies

3.  The applicant provides:

* a letter from the National Personnel Records Center
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 4 (Enlistment or Reenlistment Agreement - Armed Forces of the United States)
* DA Form 20 (Enlisted Qualification Record)
* DA Form 428 (Application for Identification Card)
* DA Form 137 (Installation Clearance Record)
* Unit Commander's POR Statement
* Various Disposition Forms
* Separation packet with allied documents and statements
* Report of Absence and/or Tardiness
* Discharge orders
* Permanent Change of Station orders
* Police Record Check and fingerprint cards
* Certificate of Clearance 
* Enlistment orders
* Active Duty orders

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's records show he enlisted in the Regular Army on 13 April 1976.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 31M (Multi-channel Communications Equipment Operator).

3.  The highest rank/grade he attained during his military service was private first class/E-3.  He was assigned to Company C, 426th Signal Battalion, Fort Bragg, NC.

4.  His records show he was frequently counseled by members of his chain of command for various infractions, including:

* Leaving his appointed place of duty without being released
* Being absent from his appointed place of duty
* Multiple instances of disobeying lawful orders
* Multiple instances of insubordination and disrespect
* Inappropriate uniform
* Multiple instances of missing from formation
* Multiple instances of being late to formation
* Failure to perform assigned duties in a satisfactory manner
* Lack of respect for authority and military regulations
* Negative and uncooperative attitude
* Lack of self-improvement and initiative
* Failing to respond to counseling

5.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 25 August 1976, disobeying a lawful order and being disrespectful
* 22 August 1977, disobeying a lawful order
* 15 December 1977, failing to go at the time prescribed to his appointed place of duty and dereliction of duty

6.  On 19 December 1977, the applicant's immediate commander referred him for a mental health evaluation.  The examining official found him able to distinguish right from wrong and did not manifest signs and symptoms requiring a medical board or hospitalization on psychiatric grounds.  He concluded the applicant did not suffer from a mental illness. 

7.  On 19 December 1977, the applicant's immediate commander notified the applicant 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).  He remarked that the applicant had demonstrated a substandard duty performance and lacked cooperation with peers and subordinates.  He had been counseled on at least 10 occasions concerning these deficiencies.  He further recommended a general discharge.

8.  The applicant acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army, the effect on future enlistment in the Army, the possible effects of a general discharge under honorable conditions, and of the procedures and rights that were available to him.  The applicant further acknowledged he understood if he were issued a general discharge he could expect to encounter substantial prejudice in civilian life.  He elected to submit a statement on his own behalf.

9.  The applicant's immediate commander subsequently initiated separation action against the applicant.  The immediate commander recommended the issuance of a General Discharge Certificate.

10.  On 5 January 1978, the separation authority approved the applicant's discharge under the provisions of paragraph 5-37 of Army Regulation 635-200 by reason of failure to meet acceptable standards for continued military service and directed that he receive a General Discharge Certificate.  On 18 January 1978, the applicant was discharged accordingly.   The DD Form 214 he was issued shows he completed 1 year, 9 months, and 6 days of creditable active service.

11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 5 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 may be discharged under the Expeditious Discharge Program.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  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.  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.

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.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel because of his inability to adapt to military life.  Accordingly, his immediate commander initiated separation action against him.  

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  

3.  Based on his overall service, including his three instances of NJP and extensive history of counseling, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

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)                                         AR20110023492





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ABCMR Record of Proceedings (cont)                                         AR20110023492



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