IN THE CASE OF:	  

		BOARD DATE:  2 October 2012

		DOCKET NUMBER:  AR20120006367 


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 to honorable.

2.  The applicant states they gave him an expeditious discharge to get him out of the Army quickly.

3.  The applicant provides:

* Service personnel records
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 23 December 1971

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 was inducted into the Army of the United States on 18 May 1970.  He served in Vietnam from 20 October 1970 to 23 October 1971.  On 
23 December 1971, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.

3.  He enlisted in the Regular Army on 22 June 1974 for a period of 4 years.     

4.  On 20 October 1976, nonjudicial punishment (NJP) was imposed against him for being derelict in the performance of his duties.

5.  On 15 December 1976, he was notified of his pending separation for failure to maintain acceptable standards for retention under the Expeditious Discharge Program under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-37.  The unit commander recommended separation with a general discharge and cited:

* the applicant's poor attitude
* his lack of motivation and self discipline
* his failure to demonstrate promotion potential
* he had been repeatedly counseled by his chain of command but his consistent failure to expend effort constructively precluded rehabilitation
* his personal appearance was unsatisfactory
* he failed to obey lawful orders

6.  He acknowledged notification of his proposed discharge, voluntarily consented to the separation, and elected to make a statement on his behalf but his statement is not available.  He also acknowledged he might expect to encounter substantial prejudice in civilian life if issued a general discharge and he had been provided an opportunity to consult with counsel.

7.  On 15 December 1976, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

8.  He was accordingly discharged on 29 December 1976 under the provisions of Army Regulation 635-200, paragraph 5-37, under the Expeditious Discharge Program for failure to maintain acceptable standards for retention.  He completed 2 years, 6 months, and 8 days of total active service during this enlistment.

9.  There is no evidence in the available records that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, in effect at the time, provided that members who had completed at least 6 months but less than 36 months of continuous active service 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 could be discharged.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  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.

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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record of service during his last enlistment included one NJP.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  It is true that the Army expeditiously discharged him (he was discharged under the Expeditious Discharge Program).  However, he voluntarily consented to the discharge.

3.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20120006367





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ABCMR Record of Proceedings (cont)                                         AR20120006367



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