BOARD DATE:	  30 July 2013

		DOCKET NUMBER:  AR20120022526 


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, under honorable conditions discharge to an honorable discharge.

2.  The applicant states his discharge has barred him from receiving education benefits from his home state.

3.  The applicant provides no additional evidence.

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 (RA) on 18 October 1979 and he held military occupational specialty 11B (Infantryman).  He was assigned to the 4th Battalion, 6th Infantry Regiment, Germany, on 2 February 1980.

3.  On 30 April 1980, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing a smoking device containing residue of marijuana and for disobeying a lawful order.
                                                          
4.  On 30 July 1980, he underwent a psychiatric evaluation.  He was referred by his unit because of minor adjustment problems, personality conflicts with his supervisors, and problems with his family back home.  The unit also noted he had received NJP for hashish possession and may have had some bad checks. 

5.  The examining psychologist determined the applicant had made an adequate adjustment to Germany, and that he had said the bad check was a bank error.  The applicant also said people in his unit had stopped hassling him but a significant problem still existed back home between his parents.  He (the applicant) further stated he was motivated to serve in the Army but had a hard time concentrating on his job when his thoughts about home became overwhelming.  The examining psychologist stated that at the present time the applicant's judgment and reliability appeared to be good; however, if he started to deteriorate discharge action was recommended.

6.  On 8 August 1980, he received NJP under the provisions of Article 15, UCMJ, for unlawfully striking another Soldier in the head with his closed fist and kicking him in the body with his foot.                              .
          
7.  On 18 September 1980, the applicant's immediate commander was notified that the applicant's post check cashing privileges had been suspended due to five dishonored checks.

8.  On 15 December 1980, he received NJP under the provisions of Article 15, UCMJ, for one specification each of stealing purses from two different German nationals.

9.  On 31 December 1980, he was notified by his immediate commander of the commander's intent to recommend him for discharge action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)), due to his being habitually substandard in his self-discipline as evidenced by his continual lack of proper military bearing and appearance.  The commander further stated he had shown no motivation or initiative to achieve anything more than the minimum standards; his disciplinary infractions included a drug offense, assault, participation in a larceny, and breaking restriction.  Correctional custody had failed to motivate him sufficiently or instill proper self-discipline and it would be in the best interest of the Army for him to be discharged immediately.

10.  On 2 January 1981, the applicant acknowledged notification of his proposed discharge from the Army.  He was advised of the basis for the contemplated discharge action, that he could not apply for enlistment in the Army within 2 years from the date of his discharge, the possible effects of a general discharge and of the procedures and rights that were available to him.  He further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.  He voluntarily consented to the discharge and he elected not to submit a statement in his own behalf.

11.  The separation authority subsequently approved his discharge under the provisions of Army Regulation 635-200, paragraph 5-31, and directed the issuance of a General Discharge Certificate.  On 26 January 1981, he was discharged accordingly.

12.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, EDP for failure to maintain acceptable standards for retention with an under honorable conditions characterization of service.  He completed 1 year, 3 months, and 26 days of net active service during this period of service.

13.  He enlisted in the RA on 5 January 1982.  However, he failed to disclose his prior active service and he was honorably discharged on 22 March 1982 under the provisions of Army Regulation 635-200, chapter 14, for misconduct-fraudulent entry.  The DD Form 214 he was issued for this period of service shows he completed 2 months and 18 days of net active service during this period of service.

14.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200, paragraph 5-31, 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.  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.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

16.  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 confirms the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on three different occasions for possessing a device with marijuana residue, failing to obey a lawful order, assaulting another Soldier, and two counts of stealing purses.  Accordingly, his commander initiated separation action against him.  

2.  He voluntarily consented to his discharge and 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 therefore were appropriate.  

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  Based on his record of misconduct, his service does not meet the standards of acceptable conduct 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)                                         AR20120022526





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ABCMR Record of Proceedings (cont)                                         AR20120022526



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