IN THE CASE OF:	  

		BOARD DATE:	  18 June 2013

		DOCKET NUMBER:  AR20120020808 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states he strongly feels he should have an honorable discharge. He has never been in any trouble with the law.  He has worked for 20 years at the Frankfurt Airport in Germany and performed good service.

3.  The applicant provides two copies 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 18 September 1979 in pay grade E-1 for a period of 3 years.  He completed training and he was awarded military occupational specialty 64C (Motor Transport Operator).  He was advanced to pay grade E-3 on 1 July 1980.

3.  The applicant was counseled on:

* 20 October 1980, for failing to be in proper uniform, appearance (hair, boots, and mustache) not meeting military standards, and failing to be at the proper place at the proper time
* 3 November 1980, for suspension of his visitation privileges as a result of his recent bad conduct
* 13 January 1981, for his appearance and overall negative attitude towards his duties as a driver and a Soldier in the Army

4.  On 4 February 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for:

* signing an official record (DD Form 1970 (Motor Vehicle Utilization Record)) with the intent to deceive on 9 January 1981
* failing to obey a lawful written order on 31 January 1981 by operating his Army motor vehicle with an unauthorized passenger and permitting the unauthorized passenger to operate his assigned Army vehicle

5.  On 5 March 1981, the applicant's company commander notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel, paragraph
5-31, under the Expeditious Discharge Program (EDP), with a general discharge. The company commander stated the reasons were the applicant's poor attitude, lack of motivation, failure to demonstrate promotion potential, and inability to adapt socially or emotionally to the Army.  The applicant was advised of his rights.

6.  On 12 March 1981, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  He waived his rights, consented to the proposed discharge action, and elected not to submit a statement in his own behalf.

7.  On 12 March 1981, the applicant's company commander recommended approval of the applicant's discharge.  The company commander stated that since the applicant's assignment to his unit he had demonstrated a complete lack 

of self-discipline, a disregard for responsibility for his own actions, and an inability to cope with the military environment.

8.  On 19 March 1981, the separation authority directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 5-31, for failure to meet acceptable standards for continued military service, with a general discharge.

9.  He was discharged from active duty, in pay grade E-3, on 31 March 1981, under the provisions of Army Regulation 635-200, paragraph 5-31, with a general discharge.  He completed 1 year, 6 months, and 13 days of creditable active service with no time lost.

10.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It stated in:

	a.  Paragraph 5-31, this program provides that members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated when they have failed to respond to counseling.

* Poor attitude
* Lack of motivation
* Lack of self-discipline
* Inability to adapt socially or emotionally
* Failure to demonstrate promotion potential

Separation authorities may award an honorable character of service if an under honorable conditions character of service is recommended by the initiating commander.

	b.  Paragraph 3-7a, an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received several negative counselings and a record of NJP under Article 15 during his short period of service.  The applicant's company commander stated he was initiating action to discharge him under the provisions of Army Regulation 635-200, paragraph 5-31, with a general discharge due to the applicant's poor attitude, lack of motivation, failure to demonstrate promotion potential, and inability to adapt socially or emotionally to the Army.  He advised the applicant of his rights.

2.  His contentions have been noted; however, he has provided no evidence or a convincing argument to show his discharge should be upgraded and his military record contains no evidence which would entitle him to an upgrade of his general discharge.  The evidence shows his misconduct and unsatisfactory performance diminished the quality of his service below that meriting a fully honorable discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The applicant voluntarily accepted discharge under the provisions of the EDP in lieu of disciplinary or administrative separation under other provisions of law or regulations.

4.  His service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  He is commended for his post-service accomplishment; however, such service in itself is insufficient as a basis for granting him an honorable discharge.

6.  In view of the foregoing, his request for discharge upgrade should be denied.

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)                                         AR20120020808



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ABCMR Record of Proceedings (cont)                                         AR20120020808



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