BOARD DATE:	  4 January 2013

		DOCKET NUMBER:  AR20120010045 


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 discharge to an honorable discharge.  He also requests the reason for his discharge be changed to "convenience of the government," the reentry eligibility (RE) code be changed 
to 1, and the separation program designator (SPD) code be changed.

2.  The applicant states he performed honorably until a new commanding officer was assigned to his unit about January 1975.  He struggled with an alcohol problem that accelerated when the new commanding officer took over.  The commander resented him going to school and caused him to be late for school on several occasions.  When he was on his way to school he was told to get into formation but he defied the order and continued on to school.

3.  Due to the conflicts occurring he asked his commanding officer to be transferred/reassigned on at least two occasions.  He was told he would not be given a transfer but he would be discharged with a general discharge under honorable conditions.  He agrees that his youth and immaturity caused him to mishandle situations and disobey some orders.

4.  His less than honorable discharge has been following him around all his life.  Although his discharge will allow him benefits from Department of Veterans Affairs (VA), he feels it is an injustice.  

5.  The applicant provides:

* three personal references
* a letter, dated 31 January 2011, from the National Personnel Records Center (NPRC), St. Louis, MO, with excerpts from his military records

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.  He enlisted in the Regular Army, at the age of 18, on 31 January 1974 for a period of 2 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 76Y (Unit Supply Specialist).  He was promoted to private/pay grade E-2 on 31 May 1974.

3.  On 5 July 1974, he was assigned to C Troop, 3rd Squadron, 8th Cavalry in Germany.

4.  On 3 March 1975, his commander notified him that he was initiating action to discharge him under the provisions of the Expeditious Discharge Program (EDP), with a general discharge characterized as under honorable conditions.  The commander stated the reasons for his proposed action were:

* he had repeatedly displayed aggressive immaturity and inability to adjust to Army life
* he had thrown several temper tantrums which had gotten him into trouble with the Military Police and caused him to destroy government property
* his performance of duty had been inconsistent and he failed to show proper respect for authority and discipline
* he had been counseled and warned repeatedly, but to no avail
* it was no longer in his interest or the interest of the unit for him to remain in the U.S. Army

5.  The applicant was advised he had the right to decline this discharge, but if subsequent misconduct indicates that such action is warranted, he may be subjected to disciplinary or administrative separation procedures under other provisions of law or regulation.

6.  He was further advised that if he received a general discharge, he may expect to encounter substantial prejudice in civilian life.  The commander also advised the applicant:

* of his right to consult with an officer of the Judge Advocate General's Corps prior to completing his acknowledgements
* of his right to submit a statement in his own behalf

7.  The applicant acknowledged he was notified of the proposed discharge action and voluntarily consented to the discharge.  He did not submit statements in his own behalf.   He understood if he was furnished a general discharge under honorable conditions he may expect to encounter substantial prejudice in civilian life.  He acknowledged that he had been provided the opportunity to consult with a Judge Advocate Officer.

8.  On 3 April 1975, the appropriate authority approved the applicant's separation under the provisions of the EDP and directed the issuance of a General Discharge Certificate.

9.  On 20 March 1975, he was discharged.  He completed 1 year, 1 month, and 20 days of total active service that was characterized as under honorable conditions.  

	a.  He was assigned the SPD code KMN.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, specified the narrative reason for SPD code KMN as "Failure to maintain acceptable standards for retention (Expeditious Discharge Program)."  The authority under this SPD code is paragraph 5-37, Army Regulation 635-200.

	b.  He was assigned an RE code of 3 (ineligible to enlist or reenlist without a waiver).  

10.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

11.  In an undated letter, his apartment manager states she had known the applicant for about 3 years.  During that time she has found the applicant to be eager to help out other residents and was often seen socializing with others in the common area.  He is a valued part of the community.
12.  In a letter, dated 5 February 2012, his ex-wife, who has known him for 
16 years and was married to him for 5 years, states the applicant has come a long way with his struggles.  He lives and takes care of himself independently and is an extremely big help with their boys.  She works full time so she depends on him frequently and can call on him when she needs assistance with the boys. He continues to do what he can for himself and his boys to be a respectable citizen in the community.  He continues to try hard to continue his sobriety and to overcome his mental and physical disabilities.  They continue to maintain a good relationship in spite of their divorce.

13.  In an undated letter, his sister states the applicant is such a great father to his two boys.  He is at all of their sports events, cheering them on, and loving them through their losses.  He always helps others with rides, lending an ear, or moving a couch.

14.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	b.  Paragraph 5-37 stated that personnel whose performance of duty, acceptability for the Service, and potential for continued effective service fell below the standards required for enlisted personnel in the U.S. Army could be discharged.  Discharge under the provisions of  this paragraph was limited to:

		(1)  Personnel who failed to be advanced to the grade of E-2 after 
4 months of active duty.

		(2)  Personnel who failed to demonstrate potential to justify advancement to the pay grade E-3 after attaining the normal time-in-service (TIS) and time-in- grade (TIG) criteria for promotion to pay grade E-3, without waiver, established in chapter 7, Army Regulation 600-200.

		(3)  Individuals discharged under this paragraph were ineligible to enlist
or reenlist without a waiver. Accordingly, an RE code of 3 was assigned.

15.  In 1974, the Department of the Army authorized the Commander-in-Chief, United States Army Europe to test a new discharge program, entitled the Expeditious Discharge Program (EDP).  This program provided that an individual 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 could be separated under the EDP.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to be afforded the opportunity to consult with legal counsel.  No individual was discharged under this provision unless the individual voluntarily consented to the discharge.

16.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, stated the normal TIS for promotion to pay grade E-3 was 
12 months.  The normal TIG was 4 months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's age at time of enlistment was noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, his age cannot be used as a reason to change a properly-issued discharge.

2.  He met the normal TIS and TIG criterion for promotion to pay grade E-3 on 
31 January 1975.  However, apparently his commander determined he failed to demonstrate potential to justify advancement to pay grade E-3.

3.  The reasons his commander initiated action to separate him clearly show he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  The evidence shows he was properly and equitably discharged in accordance with regulations in effect at the time.  His commander notified him of the reasons and the type of discharge he was recommending.  He was provided the opportunity to consult with counsel.  He voluntarily consented to the proposed discharge.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

5.  Therefore, the SPD code assigned at the time of his discharge was correct.  The narrative reason for his discharge is correct.  The regulation under which he was discharged directs that he be assigned the RE code 3.  Therefore, the RE code shown on his DD Form 214 is correct.
6.  The applicant's post-service achievements and conduct are noted.  However, good post-service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

7.  In view of the above, there is an insufficient basis to provide relief in this case.

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)                                         AR20120010045





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120010045



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1