IN THE CASE OF:	

		BOARD DATE:	     23 October 2012

		DOCKET NUMBER:  AR20120008402


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 his general discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states:

   a.  he was his father’s only family and had to get out of the Army to take care of his father after he fell two stories and was confined to his bed;
   
   b.  he made the biggest move he ever made by accepting the GD after being told it could be upgraded after 2 years; and
   
   c.  his GD should now be upgraded.

3.  The applicant provides a certificate of training and a diploma.

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 13 February 1980.  He successfully completed initial entry training and was awarded military occupational specialty 91B (Medical Specialist).

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:

* 22 January 1981 for being reported absent without leave (AWOL) 
* 30 July 1981 for failing to go at the time prescribed to his appointed place of duty and for being AWOL 4 days
* 15 October 1981 for failing to go at the time prescribed to his appointed place of duty 

4.  On 23 November 1981, 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 following as the basis for the action:  the applicant’s - 

* lack of self-discipline
* lack of motivation
* poor attitude

5.  The unit commander informed the applicant that the final decision as to whether he would be separated, and if so, whether it would be due to discharge or transfer to the Individual Ready Reserve, and the character of his service rested 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 an unknown date, the separation authority approved the applicant’s separation under the provisions of the EDP and directed he receive a GD.  On 30 November 1981, the applicant was discharged accordingly.


8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of paragraph 
5-31h(2), Army Regulation 635-200 (Personnel Separations) by reason of "EDP, Failure to Maintain Acceptable Standards for Retention."  It also shows he completed 1 year, 9 months, and 14 days of creditable military service, accrued 4 days of time lost due to being AWOL, and that he received a GD.

9.  On 3 February 1997, the Army Discharge Review Board (ADRB), after carefully considering the applicant’s case, concluded his discharge was proper and equitable, and it voted to deny his request to upgrade his discharge.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his GD should be upgraded to an HD because he was told he would receive an HD 2 years after his discharge 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 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.  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)                                         AR20120008402



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