BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20120000289 


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 had problems adjusting to military life overseas, was away from home for the first time, and lost a friend to an accident in a military vehicle.

3.  The applicant provides his DD Form 214 (Report of Separation 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 18 April 1974.  
3.  The applicant received nonjudical punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the cited offenses:

* 21 May 1974 - absent without leave on 19 May 1974
* 22 July 1974 - possession of a smoking pipe containing marijuana residue on 13 July 1974

4.  On 5 March 1976, the applicant's unit commander initiated action to administratively separate him from active duty under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
5-37 (Expeditious Discharge Program (EDP)).  The basis for the recommendation was the applicant's apathy and general attitude toward his duties and the U.S. Army.  Repeated counseling and efforts to guide him in the proper methods of fulfilling his obligations had failed to make any improvement in his actions or performance.  The unit commander indicated he was recommending the applicant receive a general discharge.

5.  On the same date, the applicant acknowledged receipt of the proposed separation action and voluntarily consented to the discharge.  He submitted a statement in his own behalf indicating he should be released for the U.S. Army because he felt he could no longer handle that way of life and if he stayed much longer he might get himself or someone else hurt because of his actions.  He realized the Army was not for everyone and if he stayed he knew he would get into serious trouble.

6.  On 12 March 1976, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-37, by reason of failure to meet acceptable standards for continued military service.  He directed the applicant be furnished a General Discharge Certificate.  On 9 April 1976, the applicant was discharged accordingly.  His DD Form 214 shows he had completed 1 year, 11 months, and 22 days of active military service.

7.  The applicant's record does not contain any evidence showing he applied to the Army Discharge Review Board to have his discharge upgraded within the board's 15-year statute of limitations.

8.  References:

	a.  Army Regulation 635-200 provides the policy and sets forth the procedures for administrative separation of enlisted personnel.  Paragraph 5-37, then in effect, provided for the EDP.  This program provided for the discharge of individuals who had completed at least 6 months, but less than 36 months of active duty and who demonstrated by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential that they could not or would not meet acceptable standards.  Such personnel were issued a general under honorable conditions or honorable discharge, as appropriate.

	b.  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 that he could not or would not meet acceptable standards.  He accepted NJP on two occasions, failed to make improvements in duty or performance, and his apathy and general attitude towards the U.S. Army.  Accordingly, his immediate commander initiated separation action against him and recommended a general discharge based on his record of misconduct and non-performance.  

2.  His general under honorable conditions discharge was appropriate considering the basis for his separation His separation was accomplished in compliance with applicable regulations with no indications of procedural errors which would tend to jeopardize his rights.  He has not shown error, injustice, or inequity for the relief he requests.  Therefore, the applicant is not entitled to an honorable discharge.

BOARD VOTE:
________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.



      ________________________
               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)                                         AR20120000289





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ABCMR Record of Proceedings (cont)                                         AR20120000289



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