IN THE CASE OF:	  

		BOARD DATE:	  2 May 2013


		DOCKET NUMBER:  AR20120018112 


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 under honorable conditions to fully honorable.

2.  The applicant states:

* He completed 18 months of service without incident 
* His discharge was inequitable because it was based on one isolated incident
* The first sergeant (1SG) harassed him about haircuts even after having his hair cut
* He was in Germany at the time and he told the 1SG about black market operations happening then but was sent to extra duty instead
* When he went back stateside, he requested a transfer and/or to reenlist but it was turned down

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))

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 21 April 1976.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 13E (Field Artillery - Cannon Fire Direction Specialist). 

3.  His records show he served in Germany from 1 March 1977 to 24 August 1977 in a unit temporary duty status.  He was assigned to the 1st Battalion, 14th Field Artillery. 

4.  On 4 May 1977, 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. 

5.  In October 1977, 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).  His immediate commander remarked that the applicant had demonstrated a poor attitude, lack of motivation, lack of self-discipline, and an inability to adapt socially and emotionally.  He failed to demonstrate promotion potential, had a quitter attitude, was unable to accept instructions and directions, demonstrated a substandard duty performance, and lacked cooperation with peers and subordinates.  He had been counseled on multiple occasions (6 occasions) concerning these deficiencies.  He further recommended a general discharge.

6.  The applicant acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and 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.

7.  The applicant's immediate commander subsequently initiated separation action against him.  The immediate commander recommended the issuance of a General Discharge Certificate.

8.  The separation authority approved the applicant's discharge under the provisions of paragraph 5-37 of Army Regulation 635-200 by reason of failure to meet acceptable standards for continued military service and directed that he receive a General Discharge Certificate.  On 7 November 1977, the applicant was discharged accordingly.  His DD Form 214 shows he completed 1 years, 6 months, and 17 days of creditable active service.

9.  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.

10.  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 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 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/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.

11.  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 demonstrated he could not or would not meet acceptable standards required of enlisted personnel because of his inability to adapt to military life.  Accordingly, his immediate commander initiated separation action against him.  He was advised of his rights and consented to the discharge action.

2.  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. 

3.  Based on his overall service, including his Article 15 and history of counseling, the applicant's service did not meet the standards of acceptable conduct and performance of duty 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)                                         AR20120018112





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ABCMR Record of Proceedings (cont)                                         AR20120018112



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