IN THE CASE OF: 

		BOARD DATE:	    4 January 2013

		DOCKET NUMBER:  AR20120009757 


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 under honorable conditions be upgraded to an honorable discharge.

2.  He states, in effect, that before he signed the paperwork for his administrative discharge from the Army under the provisions of chapter 5 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) he was led to believe it would be automatically upgraded to an honorable discharge 1 year after his discharge date.  He contends he was a good troop and well liked, just young and stupid.  He has always considered himself a veteran and a good citizen who has no criminal record.  While in the Army, he completed all of his training and was well liked.  He received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code for Military Justice (UCMJ) on three occasions and served his punishment.  He contends he did everything he was told to do; he just had a bit of bad luck.

3.  He provides no evidence in support of this application.

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 was born on 6 October 1960 and he enlisted in the Regular Army on 23 February 1979 at the age of 18 years, 4 months, and 18 days.  He completed basic combat training and advanced individual training (AIT).  Upon completion of AIT, he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  However, at the time of separation he held the rank/grade of private (PV1)/E-1.

3.  His record reveals a disciplinary history that includes his acceptance of NJP under the provisions of Article 15 of the UCMJ on three occasions for the following offenses:

* Wrongful possession of approximately 40 grams of marijuana; a violation of Article 134, UCMJ
* Dereliction in the performance of his duties by failing to stay awake on guard duty; a violation of Article 92, UCMJ
* Failing to go at the time prescribed to his appointed place of duty; a violation of Article 86, UCMJ
* Breaking restriction; a violation of Article 134, UCMJ

4.  On 24 December 1979, the applicant's immediate commander notified him of his intent to initiate action to discharge him from the Army under the provisions of paragraph 5-31 (Expeditious Discharge Program (EDP)), chapter 5 of Army Regulation 635-200.  The commander stated the reasons for this action were the applicant's substandard performance and inability to accept instructions or directions.  He informed the applicant that issuance of a less than honorable discharge could preclude his eligibility for many or all veteran's benefits and he could expect to encounter substantial prejudice in civilian life.  The commander also informed him that he intended to recommend he receive a General Discharge Certificate with a service characterization of Under honorable Conditions and advised him of his rights to consult with legal counsel to discuss the ramifications of this recommendation and to submit a statement in his own behalf, to decline the discharge, or to waive any of the aforementioned rights.

5.  On 24 December 1979, he acknowledged receipt of the commander’s notification of intent to separate him under the provisions of the EDP.  He consulted with legal counsel and was advised of the basis for the contemplated separation from the Army under the provisions of chapter 5 of Army Regulation 635-200, the effect on his future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  The applicant voluntarily consented to this separation action.  He acknowledged he understood that if he were issued a General Discharge Certificate he could expect to encounter substantial prejudice in civilian life.  He also declined to submit a statement on his own behalf.

6.  On 24 December 1979, his immediate commander recommended that he be discharged under the provisions of the EDP.

7.  On 2 January 1980, a Bar to Reenlistment was initiated against him for failing to adapt to the military environment.  His unit commander opined his negative attitude toward the Army was only worsened by his unwillingness to improve in order to meet the minimum standards.  He concluded the applicant was a disciplinary problem and should not be considered for continued military service.
The Bar was approved by the appropriate authority on 4 January 1980.

8.  On 15 January 1980, the separation authority approved his discharge and directed that he be furnished a DD Form 257A (General Discharge Certificate).

9.  On 7 February 1980, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed a total of 11 months and 15 days of creditable active military service.  This form also shows:

* he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31
* his service was characterized as under honorable conditions

10.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in 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 EDP.  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.

12.  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 general discharge under honorable conditions should be upgraded to an honorable discharge was carefully considered.

2.  His record shows he was over 18 years of age at the time of enlistment and commission of his offenses.  However, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  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.

4.  His record reveals a disciplinary history that includes:

* Wrongful possession of marijuana
* Dereliction in the performance of his duties
* Failing to go at the time prescribed to his appointed place of duty
* Breaking restriction

5.  The evidence of record shows he voluntarily consented to be discharged under the EDP.  His discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Considering all the facts of the case, the type of discharge directed and the reason for separation were appropriate.

6.  His record of service shows he displayed an inability to adjust to the regimentation of military life as reflected by his lack of response to counseling regarding his poor attitude, and lack of motivation.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct or 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)                                         AR20120009757





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120009757



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1