BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20120003164 


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 requestst his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states he was told his GD would be upgraded to an HD once he completed his inactive service in the U.S. Army Reserve (USAR).

3.  The applicant provides no additional documents.

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 record shows he enlisted in the Regular Army on 17 April 1979.  He successfully completed one station unit training at Fort Leonard Wood, Missouri and was awarded military occupational specialty 64C (Motor Transport Operator).

3.  His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on the following dates for the indicated offenses:

* 4 January 1980 - being disorderly in uniform in a public place in Mannheim, Germany
* 19 May 1980 - failing to go at the time prescribed to his appointed place of duty
* 3 September 1980 - departing absent without leave (AWOL) from on or about 3 - 11 August 1980

4.  On 16 October 1980, his unit commander notified the applicant of his intent to initiate action to separate him under the provisions of the Expeditious Discharge Program (EDP) and that he was recommending the applicant receive an HD.  The unit commander cited the applicant’s inability to adapt to the United States Army and his flagrant disregard for personal responsibility as the basis for the action.

5.  The unit commander informed the applicant that the final decision as to whether he would separated, and if so, by discharge or transfer to the Individual Ready Reserve, and to the character of service he would receive rests with the separation authority.

6.  The applicant acknowledged the notification in writing and indicated that he voluntarily consented to this discharge.  He also elected not to make a statement in his own behalf.

7.  On 16 October 1980, the separation authority approved the applicant’s separation under the provisions of the EDP and directed he receive a GD.  On 11 December 1980, the applicant was released from active duty (REFRAD) and transferred to the USAR Control Group.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was REFRAD under the provisions of paragraph 5-31h(1), Army Regulation 635-200 (Personnel Separations) by reason of "EDP, Failure to Maintain Acceptable Standards for Retention."  It also shows he completed 1 year, 7 months, and 16 days of creditable military service, accrued 9 days of time lost due to AWOL, and that he received a GD.
9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, paragraph 5-31, then in effect, provided the policy and outlined the procedures for separating individuals under the EDP.  The EDP provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.  An HD or GD could be issued under this program.

11.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention his GD should be upgraded to an HD because he was told he would receive an HD upon completion of his USAR service was carefully considered.  However, the U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

2.  The evidence of record confirms that although the unit commander recommended the applicant receive an HD, he also informed him that the separation authority would ultimately decide the character of his service.  Accordingly, the separation authority directed issuance of a GD.

3.  The separation processing under the provisions of the EDP was accomplished in accordance with the applicable regulation and the applicant voluntarily consented to the discharge and elected not to make a statement in his own behalf.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  The applicant's record reveals a disciplinary history that clearly diminished the quality of his service below that meriting a fully honorable discharge.  Therefore, absent any evidence of error or injustice, there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.

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)                                         AR20120003164





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ABCMR Record of Proceedings (cont)                                         AR20120003164



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