IN THE CASE OF: 

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120010122 


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 and correction of his separation program designator (SPD) code. 

2.  The applicant states, in effect, his discharge should be upgraded and the SPD of "JGH" is incorrect.

3.  The applicant did not provide any additional evidence.

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 records show he enlisted in the Regular Army on 25 October 1977 and held military occupational specialty 76W (Petroleum Supply Specialist). The highest rank/grade he attained during his military service was private/E-2.  He was assigned to Support Company, 24th Aviation, Fort Stewart, GA.  He was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar.

3.  His records also show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 2 March 1978, making a false statement with intent to deceive
* 27 December 1978, failing to go at the time prescribed to his appointed place of duty on three separate occasions
* 19 January 1979, wrongfully possessing marijuana

4.  His records further reveal a history of negative counseling by members of his chain of command for various infractions, including:

* Multiple instances of failure to repair
* Possession of contraband
* Failure to meet acceptable standards

5.  On 27 March 1979, his immediate commander advised him that he intended to initiate action to discharge him from the Army under the provisions of paragraph 5-31 (Expeditious Discharge Program (EDP)) of Army Regulation   635-200 (Personnel Separations) by reason of failing to meet and maintain acceptable standards, lack of minimum self-discipline to handle personal affairs and to perform his duties as a Soldier, and incidents of minor misconduct prejudicial to the good order and discipline.  He recommended a general discharge.

6.  On 29 March 1979, the applicant acknowledged notification of the proposed separation action and consulted with legal counsel.  He was advised of the basis for the contemplated separation action under the provisions of paragraph 5-31, Army Regulation 635-200, the effect on future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  He voluntarily consented to this separation action and declined to make a statement in his own behalf.  He further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.

7.  Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him under the EDP. 


8.  On 5 April 1979, consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge action and directed that he be issued a General Discharge Certificate.  On 13 April 1979, he was accordingly discharged.  

9.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he completed a total of 1 year, 5 months, and 19 days of creditable active military service.  He was assigned SPD "JGH."

10.  There is no indication he applied to the Army Discharge Review Board for an 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.

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The regulation in effect at the time identified the SPD code of JGH as the appropriate code to assign Regular Army Soldiers separated under the provisions of paragraph 5-31, Army Regulation 635-200, under the EDP.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant continuously displayed a lack of self-discipline and an inability to conform to military rules as evidenced by several instances of NJP and/or negative counseling.  Accordingly, his chain of command initiated separation action against him and he voluntarily consented to discharge under the EDP. 

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  The applicant’s record confirms he was discharged under the provisions of paragraph 5-31, Army Regulation 635-200, EDP.  Based on this authority and reason for separation he was appropriately assigned an SPD code of "JGH" in accordance with the applicable regulation.  His assigned SPD code was the appropriate code at the time and there is no reason to change it. 

5.  In view of the foregoing evidence, the applicant is not entitled to the requested relief.

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)                                         AR20120010122





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ABCMR Record of Proceedings (cont)                                         AR20120010122



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