IN THE CASE OF:
BOARD DATE: 16 May 2013
DOCKET NUMBER: AR20120019810
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 his general discharge (GD) be upgraded to an honorable discharge (HD).
2. The applicant states he received the GD because the Army was downsizing and he had only one minor incident that resulted in the GD.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and 14 pages of documents to and from his Congressman.
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 applicants 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 applicants 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 9 October 1980, completed training, and was awarded the military occupational specialty 13B (Cannon Crewman).
3. The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on four occasions between November 1981 and August 1982. The charges were for failure to go to his place of duty on six occasions and once for failure to obey a lawful order (to get a haircut). Twice his punishment was suspended only to be vacated for additional infractions.
4. In addition to the NJP's, he received an additional four negative counseling statements for failure to go to his place of duty and one for his lack of resolving a child care problem. He also received two notifications of dishonored checks, one for insufficient funds and one for issuing a check against a closed account.
5. On 16 September 1982, his unit commander initiated separation action under Army Regulation 635-200 (Personnel Separations), paragraph 5-31 the Expeditious Discharge Program (EDP). The unit commander recommended separation due to the applicant's apathetic attitude, repeated incidents of failure to go, and his NJP for failure to obey a lawful order. The unit commander recommended he receive a GD.
6. The applicant acknowledged the separation recommendation and waived all of his rights.
7. The separation authority approved the applicants separation under the provisions of the EDP, directed the applicant receive a GD, and that he not be transferred to the Army Reserve.
8. On 23 September 1982, the applicant was separated under the provisions of Army Regulation 635-200, paragraph 5-31 (EDP), with a GD. He had 1 year, 11 months, and 15 days of creditable service with no days of lost time.
9. His record does not show receipt of any personal awards, decorations, commendations, or meritorious comments.
10. Army Regulation 635-200, as then in effect, set forth the basic authority for the separation of enlisted personnel. It provided the following at:
a. paragraph 3-7a that an honorable discharge (HD) is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldiers service has met the standards of acceptable conduct and performance of duty.
b. paragraph 3-7a(1) in pertinent part states: "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Art 15." "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."
c. paragraph 3-7b that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.
d. paragraph 5-31 then in effect, provided the policy and outlined the procedures for separating individuals under the EDP. The EDP provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel. An HD or GD could be issued under this program.
DISCUSSION AND CONCLUSIONS:
1. The applicant committed a series of offenses over a period of approximately one year, not just the single issue as he implies.
2. The applicant has not provided and the records do not contain any evidence to mitigate his misconduct or to show his service met the standards for award of an HD.
3. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.
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) AR20120019810
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ABCMR Record of Proceedings (cont) AR20120019810
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