IN THE CASE OF:	 

		BOARD DATE:	  29 January 2013

		DOCKET NUMBER:  AR20120012740 


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 to a fully honorable discharge. 

2.  The applicant states his wife at the time was messing around with a sergeant. This sent him in a downward spiral.  He was unable to work and he was sent to Fort Riley, KS, for a short period to get away from the situation.  He was then sent to Fort Bragg, NC but he was still unable to cope.  He went to Mental Health for treatment, but was ultimately discharged.  He was told his character of service would be upgraded in 5 years.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 13 February 1980.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 76V (Materiel Storage and Handling Specialist).  

3.  Subsequent to completion of MOS training, he was assigned to the 530th Supply and Service Battalion, Fort Bragg, NC.

4.  On 5 January 1981, he departed his unit in an absent without leave (AWOL) status.  However, he surrendered to military authorities at Fort Bragg, NC, on 8 January 1981.

5.  On 19 February 1981, he again departed his unit in an AWOL status.  However, he again surrendered to military authorities at Fort Bragg, NC, on 23 February 1981.

6.  On 2 March 1981, he again departed his unit in an AWOL status.  However, he surrendered to military authorities at Fort Bragg, NC, on 24 March 1981.

7.  On 2 April 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* Failing to go at the time prescribed to his appointed place of duty
* Being AWOL from 2 to 24 March 1981
* Being disrespectful in language toward a superior noncommissioned officer

8.  On 4 May 1981, he again departed his unit in an AWOL status.  However, he surrendered to military authorities at Fort Bragg, NC, on 8 May 1981.

9.  On 21 September 1981, he was convicted by a summary court-martial of one specification of disobeying a lawful order from a superior commissioned officer.  The court sentenced him to confinement at hard labor for 30 days and a suspended forfeiture of pay.  The convening authority approved his sentence on the same date. 

10.  On 23 February 1982, at Fort Benning, GA, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.

11.  On 17 April 1982, he departed his unit in an AWOL status.  However, he surrendered to military authorities at Fort Benning, GA, on 20 April 1982.  

12.  On 22 April 1982, at Fort Benning, GA, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 17 to 20 April 1982. 

13.  On 25 May 1982, 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 poor attitude, lack of motivation, lack of self-discipline, and failure to demonstrate promotion potential.  He recommended a general discharge.

14.  On 25 May 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, under honorable condition discharge and of the procedures and rights that were available to him.  He acknowledged that he understood if he were issued a general under honorable conditions discharge, he could expect to encounter substantial prejudice in civilian life.  He also declined making a statement in his own behalf.  

15.  Subsequent to this action, his immediate commander initiated separation action against him under the EDP.  The immediate commander stated that the applicant had been counseled on several occasions but he consistently failed to change his poor attitude.  He continued to direct his hostility toward superiors and fellow Soldiers.  He was disruptive to unit activities and adversely affected esprit de corps.  

16.  On 2 June 1982, the separation authority approved the discharge and directed that he receive a General Discharge Certificate.  On 7 June 1982, the applicant was accordingly discharged.  The DD Form 214 he was issued confirms he was discharged under the provisions of paragraph 5-31 of Army Regulation 635-200 with an under honorable conditions (general) character of service.  This form further confirms he completed a total of 2 years, 2 months, and 22 days of creditable active military service and he had at least 33 days of lost time.

17.  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.

18.  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. 

19.  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.  

20.  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 the applicant continually displayed a lack of self-discipline and inability to conform to military rules as evidenced by an extensive history of AWOL, three instances of NJP, and a court-martial.  Accordingly, his chain of command initiated separation action against him under the EDP.  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.

2.  With respect to his arguments:

	a.  Contrary to his contention, his service was marred by misconduct throughout his military service.  His records do not show he was discharged because of any reason related to his wife; he was discharged due to apathy - poor attitude, lack of motivation, lack of self-discipline, and failure to demonstrate promotion potential. 

	b.  Contrary to his belief that his discharge would be upgraded in 5 years, the Army has never had a policy wherein a character of service is upgraded due to passage of time. 

3.  His overall record of service shows he displayed an inability to adjust to the regimen of military life or respond to counseling.  Based on his overall record, his service does 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 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)                                         AR20120012740



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ABCMR Record of Proceedings (cont)                                         AR20120012740



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