IN THE CASE OF:	  

		BOARD DATE:  12 September 2013

		DOCKET NUMBER:  AR20130002909 


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 to an honorable discharge.

2.  The applicant states he is 55 years old and has turned his life around from 
35 years ago.  The applicant states he has a family and an upgrade would look better in their eyes.  He made mistakes and he has been able to make corrections in his life.  The applicant states he does not want to leave this earth knowing that he did not attempt to correct his discharge.

3.  The applicant provides no additional documentation in support of his request.

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 24 February 1976.  He successfully completed training and he was awarded military occupational specialty (MOS) 71N (Traffic Management Coordinator).  

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 
15 of the Uniform Code of Military Justice (UCMJ) on the following dates:

* 18 March 1977 - for disobeying a lawful order from a superior noncommissioned officer (NCO) and for using disrespectful language toward a superior NCO
* 10 May 1978 -  for failure to go to his appointed place of duty

4.  On 18 September 1978, the applicant’s commander submitted a request to discharge the applicant under the provisions of the Expeditious Discharge Program (EDP).  The commander based his recommendation on the applicant's record as follows:

* 18 March 1977 - Article 15
* March 1977 - Rehabilitative reassignment
* 6 March 1978 - Letter of Reprimand (failure to pay street car fares)
* 20 March 1978 - Failure to go to work
* 23 March 1978 - One hour late for work
* 27 March 1978 - 45 minutes late for work
* 3 April 1978 - Two hours and twenty minutes late for work
* 10 May 1978 - Article 15
* 9 June 1978 - Failure to go to work
* 22 June 1978 - Second rehabilitative reassignment
* 4 September 1978 - One hour and 15 minutes late for work
* 5 September 1978 - Failure to go to work
* 6 September 1978 - Failure to go to work
* 11-12 September 1978 - Failure to go to work

5.  18 September 1978, the applicant acknowledged notification of the contemplated discharge action and voluntarily consented to the discharge.  He acknowledged that he had been provided the opportunity to consult with counsel and he waived his right to submit a statement in his behalf.

6.  On 2 October 1978, the appropriate authority approved the recommendation to administratively separate the applicant with a general discharge under the EDP.



7.  On 14 November 1978, the applicant was discharged after completing 
2 years, 8 months, and 9 days of creditable active service.

8.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 5-31 provided that members who completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of a poor attitude, a lack of motivation, a lack of self-discipline, an inability to adapt socially or emotionally or failure to demonstrate promotion potential could be discharged.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before a board or punitive action became necessary.

	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’s request to upgrade his general discharge to an honorable discharge was carefully considered and it was determined there is insufficient evidence to support his request.  

2.  Records show the applicant was separated from active duty for failure to meet acceptable standards for continued military service.  He failed to go to work on numerous occasions, reported late to work on numerous occasions, had two rehabilitation reassignments, received a letter of reprimand, and received two instances of NJP.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel that are required for the issuance of an honorable discharge.  

3.  Absent evidence to the contrary it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, the applicant’s discharge was proper and equitable.  

4.  His post-service conduct is noteworthy; however, good post-service conduct alone is not a basis for upgrading a discharge and is insufficient to mitigate his indiscipline while in the Army.  Therefore, the general characterization of his service was, and is still, warranted.

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)                                         AR20130002909





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ABCMR Record of Proceedings (cont)                                         AR20130002909



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