IN THE CASE OF:	

		BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130002349 


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 under honorable conditions to an honorable discharge.

2.  The applicant states that military lawyers told him he could request a change in the character of service of his discharge.  He states he was young and dumb and didn't make good choices; he was a good Soldier other than not being able to keep his mouth shut.  He was young and not thinking clearly because his parents had just divorced.  He is older now and able to deal with his emotions.

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 enlisted in the Regular Army on 26 April 1977 for a period of 3 years at age 20 years and 1 month.  He was awarded military occupational specialty 63C (Track Vehicle Mechanic).

3.  The applicant was assigned overseas to Germany on 24 October 1977.

4.  On 13 November 1978, the applicant's commander notified the applicant of his intent to initiate separation action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)), based on the applicant's unsatisfactory duty performance and conduct and his poor attitude.

	a.  He noted the applicant was counseled on numerous occasions concerning his basic responsibilities and functions as a Soldier.  He also noted the applicant had received nonjudicial punishment on four occasions, a bar to reenlistment, and he was enrolled in the command's drug and alcohol abuse counseling program.

	b.  The commander advised the applicant of his rights, the separation procedures involved, and that he was recommending the issuance of a General Discharge Certificate.

5.  The applicant acknowledged he had been provided the opportunity to consult with a Judge Advocate General officer concerning the basis for the contemplated separation action.

	a.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him.

	b.  He waived his right to submit a statement in his own behalf and voluntarily accepted a discharge from the U.S. Army.

	c.  The applicant placed his signature on the document.

6.  The applicant's commander recommended approval of the separation action and the issuance of a General Discharge Certificate.

7.  The separation authority approved the recommended separation action and directed the issuance of a General Discharge Certificate.

8.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged under honorable conditions on 1 December 1978 under the provisions of Army Regulation 635-200, paragraph 5-31, under the EDP.  He completed 1 year, 7 months, and 6 days of creditable active service.

9.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.

	a.  Paragraph 5-31, in effect at the time, provided for the separation of Soldiers under the EDP who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and/or failure to demonstrate promotion potential.  Members separated under the EDP could be awarded a character of service of honorable or general under honorable conditions, as appropriate.

	b.  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 applicant contends that his general discharge under honorable conditions should be upgraded to an honorable discharge.

2.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 5-31, was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Considering all the facts of the case, the type of discharge directed and the reasons were appropriate.

3.  He was over 20 years old when he enlisted.  The applicant's military personnel records show he received nonjudicial punishment on four occasions and he was barred from reenlistment.  Further, he was discharged based on his unsatisfactory duty performance and conduct, poor attitude, and failure to respond to counseling.  Moreover, he completed less than 20 months of his 3-year active duty service obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130002349



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ABCMR Record of Proceedings (cont)                                         AR20130002349



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