IN THE CASE OF:	  

		BOARD DATE:	  4 January 2013

		DOCKET NUMBER:  AR20120010316 


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.

2.  The applicant states:

* he received the Army Commendation Medal and the Army Service Ribbon
* he had a disagreement with a sergeant over relationships
* he believes he was treated unjustly
* he now needs medical assistance

3.  The applicant provides no 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 7 October 1980 and held military occupational specialty 31N (Tactical Circuit Controller).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  He was awarded or authorized the Army Commendation Medal, Army Service Ribbon, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  He was assigned to the 327th Signal Battalion, Fort Bragg, NC.

4.  His records show he was frequently counseled by members of his chain of command for various infractions including violating female barracks policy, harassing females living in the barracks, failing to report, being late for formation, and problems accepting orders.

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

* 11 February 1982, for being absent without leave (AWOL) from 28 December 1981 to 17 January 1982
* 27 April 1982, for being AWOL from 8 to 9 April 1982

6.  On 16 July 1982, his immediate commander advised him that he intended to initiate action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-31 (Expeditious Discharge Program (EDP)), by reason of poor attitude, lack of self discipline, inability to adapt emotionally, and inability to demonstrate responsibility which indicated a lack of promotion potential.  He recommended a general discharge.

7.  On 26 July 1982, 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 Army Regulation 635-200, paragraph 5-31, the effect on future enlistment in the Army, the possible effects of a general discharge, and the procedures and rights available to him.  He acknowledged that he understood if he were issued a general discharge he could expect to encounter substantial prejudice in civilian life.  He further submitted a statement on his own behalf.

8.  In his statement, the applicant stated:

* he was one of the best Soldiers in the company and received the Army Commendation Medal
* his achievements were noteworthy and recognized by his chain of command
* he did not consent to the discharge and would rather be transferred to any other unit

9.  Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him under the EDP.  The immediate commander recommended a general under honorable conditions discharge.

10.  On 17 August 1982, the separation authority approved the discharge and directed the issuance of a General Discharge Certificate.  On 23 August 1982, the applicant was accordingly discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, with an under honorable conditions (general) character of service.  This form further shows he completed 1 year, 9 months, and 28 days of creditable active military service and had 18 days of lost time.

11.  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.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  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 or 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.

13. On 1 April 1982, an Interim Change to Army Regulation 635-200 eliminated the requirement to obtain the Soldier's consent for separation under the provisions of the EDP and eliminated the requirement to offer an administrative separation board for Soldiers with less than 6 years for separation under the provisions of the unsuitability provision. 

14.  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 evidence of record shows he continually displayed a lack of self-discipline and inability to conform to military rules as evidenced by his multiple negative counselings and two instances of NJP.  Accordingly, his chain of command initiated separation action against him under the EDP.  

2.  His separation 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 overall record, his service did not meet the standards of acceptable conduct and performance 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 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)                                         AR20120010316



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ABCMR Record of Proceedings (cont)                                         AR20120010316



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