IN THE CASE OF:	   

		BOARD DATE:	  10 September 2013

		DOCKET NUMBER:  AR20130002825 


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 discharge under honorable conditions to an honorable discharge.

2.  The applicant states he would like his discharge upgraded to make small things more attainable.  He was turned down for a transportation card by the Veterans Assistance Commission because of his general discharge under honorable conditions.

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 on 15 September 1975 and he held military occupational specialty 17A (Combat Surveillance and Targeting Acquisition Crewman).  On 18 November 1975, he was assigned to Battery B, 1st Battalion, 25th Field Artillery, Fort Bragg, NC.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ, as follows on:

* 12 April 1976, for failing to go at the prescribed time to his appointed place of duty
* 13 May 1976, for failing to obey a lawful order

4.  On 30 July 1976, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37, for his lack of motivation, poor attitude, and his inability to adapt socially and emotionally.  The commander advised the applicant that he was recommending his separation with a general discharge and he had the right to decline the discharge.

5.  On 30 July 1976, he acknowledged notification of the proposed discharge from the Army.  On 3 August 1976, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a general discharge under honorable conditions, and the procedures and rights available to him.  He voluntarily consented to this discharge.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge.

6.  His senior commander subsequently recommended approval of the applicant's separation with the issuance of a General Discharge Certificate.  His commander stated he had demonstrated traits which labeled him as unsuitable for further military service.  He required excessive supervision to accomplish even simple tasks, refused to respond to constructive counseling, and his poor attitude adversely affected other members in his section.  His record of NJP included one Article 15 for failing to repair and a second one for failing to obey a lawful order.

7.  On 20 August 1976, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 5-37, with the issuance of a General Discharge Certificate.  On 26 August 1976, he was discharged accordingly.

8.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 5-37, for failure to maintain acceptable standards for retention.  He completed 11 months and 12 days of net active service.

9.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200, 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.

11.  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 shows 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 two separate occasions for failing to report and disobeying a lawful order.  In addition, his immediate commander stated he lacked motivation, had a poor attitude, and demonstrated an inability to adapt socially or emotionally to the Army.  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 discharge upgrades solely for the purpose of making an 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, his service did 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 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)                                         AR20130002825



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ABCMR Record of Proceedings (cont)                                         AR20130002825



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