IN THE CASE OF:	  

		BOARD DATE:	    5 September 2013

		DOCKET NUMBER:  AR20130001822 


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 correction of his DD Form 214 (Report of Separation from Active Duty) to show he was voluntarily discharged for personal reasons.  He further requests credit for the time he spent in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP).

2.  The applicant states he was not released for failure to maintain acceptable standards for retention; rather, he was released because he asked to be let out of the military for personal reasons.  He further states the date he entered military service is incorrect.  He entered military service under the DEP in October 1976, which is not stated on his DD Form 214 or credited toward his service time.

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 USAR DEP on 27 December 1976 and was discharged on 3 January 1977 (a period of 8 days) for immediate enlistment in the Regular Army.  He enlisted in the Regular Army and entered active duty on 4 January 1977 for a period of 3 years.  He was trained in, awarded, and served in military occupational specialty 17C (Sound Ranging Crewman).

3.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on:

	a.  21 May 1977, for being absent without leave (AWOL) for the period 9 through 13 May 1977;

	b.  27 October 1977, for using disrespectful language toward a superior noncommissioned officer and for being AWOL for the period 7 through 
12 October 1977; and

	c.  15 November 1977, for behaving disrespectfully toward a superior commissioned officer, using disrespectful language toward a superior noncommissioned officer, and failing to go to his appointed place of duty.

4.  On 16 November 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 initiated the action due to:

	a.  his refusal to adapt to military life due to immaturity,

	b.  numerous disruptive acts with superiors and peers alike to include acts of a hostile and aggressive nature,

	c.  repeated instances of being AWOL and his refusal to correct himself in areas in which he was counseled, and

	d.  his total disregard for rules and regulations imposed by his superiors.

5.  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.

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

7.  The separation authority approved the applicant's discharge under the provisions of paragraph 5-37 of Army Regulation 635-200 and directed the issuance of a General Discharge Certificate.  On 22 December 1977, the applicant was discharged accordingly.  Item 9c (Authority and Reason) of his DD Form 214 shows the separation program designator code (SPD) "JGH."  Item 18d (Record of Service – Prior Inactive Service) shows "0 years, 0 months, 9 days."  This form further shows he completed 11 months and 19 days of creditable active service.

8.  The applicant provides no evidence nor do his records contain any evidence to support his contention that he entered service under the USAR DEP in October 1976 or that he asked to be released from the military for personal reasons.

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 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.

10.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that SPD code "JGH" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200 by reason of failure to maintain acceptable standards for retention (Expeditious Discharge Program).

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  The version in effect at the time provided for prior inactive service to be annotated in item 18d of the DD Form 214.  There were no provisions for a separate entry showing time served in the USAR DEP.

12.  Army Regulation 635-5, currently in effect, allows for a separate DEP entry in the remarks section of the DD Form 214, but only to ensure that DEP time is credited toward fulfillment of the statutory military service obligation.

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 he voluntarily 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.  The applicant provided no evidence nor do his records contain any evidence to support his contention that he entered service under the USAR DEP in October 1976 or that he asked to be released from the military for personal reasons.  The SPD code "JGH" was the appropriate code assigned to Soldiers separated under the provisions of Army Regulation 635-200 for failure to maintain acceptable standards for retention (Expeditious Discharge Program) and is correctly reflected on his DD Form 214.

4.  With regard to the applicant's service in the USAR DEP, his DD Form 214 appears to be incorrect.  It shows he completed 9 days of prior inactive service.  His USAR DEP time for the period 27 December 1976 to 3 January 1977 equals 8 days.  It should be noted that the applicant's service in the USAR DEP is not active duty service.  He entered on active duty on 4 January 1977 when he enlisted in the Regular Army.

5.  There were no provisions for a separate entry on the DD Form 214 showing time served in the USAR DEP when he was discharged in 1977.

6.  In view of the foregoing, he is not entitled to the requested relief. 

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)                                         AR20130001822



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ABCMR Record of Proceedings (cont)                                         AR20130001822



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