IN THE CASE OF:

		BOARD DATE:  	  24 January 2013

		DOCKET NUMBER:  AR20120013244 


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 honorable.

2.  The applicant states:

	a.  In order to silence his report of drug sales and use by four noncommissioned officers (NCO's) in his platoon, he was compelled to accept the discharge or be transferred to Korea.

	b.  He and another Soldier were physically assaulted by one of the NCO's.  They were transported the following day to main post for protection and interviews by the U.S. Army Criminal Investigation Command.

	c.  The duty officer threatened the applicant with physical assault if he didn't change his story.  He refused.

	d.  He was young, idealistic, ignorant, and scared to death.  He is now older and realizes the way he was treated was dishonest and against the law.  He did nothing wrong.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation 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 enlisted in the Regular Army on 22 May 1975.  He completed training and he was awarded military occupational specialty 11B (Infantryman).

3.  Following training he was assigned to Fort Riley, Kansas.  The highest rank he attained was private first class.

4.  On 24 May 1976, his immediate commander notified him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program).  The reasons for the proposed action were the applicant's vague allegations of drug dealing in the troop and of threats to his life, and his refusal to submit a signed statement.  The commander recommended a general discharge.

5.  The applicant acknowledged notification of his proposed discharge from the Army and his right to consult with legal counsel.  He was advised of the basis for the contemplated separation from the Army, the effect on future enlistment in the Army, the possible effects of a general discharge under honorable conditions, and the procedures and rights available to him.  The applicant further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge.  He elected not to submit a statement on his own behalf.  He voluntarily consented to the discharge.

6.  On 8 July 1976, the separation authority approved the discharge and directed the issuance of a General Discharge Certificate.

7.  The applicant was discharged on 16 July 1976 under the provisions of Army Regulation 635-200, paragraph 5-37.  He completed 1 year, 1 month, and 25 days of creditable active service.

8.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37, in effect at the time, provided that members who completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who demonstrated 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 Expeditious Discharge Program.  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.

10.  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.  There is no available evidence to substantiate the applicant's assertions as to his treatment while serving on active duty.

2.  The applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel because of his inability to adapt to military life by not substantiating his allegations with a signed statement.  Accordingly, his immediate commander initiated separation action against him.

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

4.  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)                                         AR20120006183



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ABCMR Record of Proceedings (cont)                                         AR20120013244



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