IN THE CASE OF:	  

		BOARD DATE:  22 October 2013

		DOCKET NUMBER:  AR20130003538 


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 his general discharge be upgraded to an honorable discharge.

2.  The applicant states he wants to qualify for benefits with the Department of Veterans Affairs (VA). 

3.  The applicant provides no additional evidence in support of his application.

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.  On 6 October 1975, he enlisted in the Regular Army for a period of 3 years.  He was promoted to private/pay grade E-2 (PV2) on 14 February 1976.

3.  His military records show he departed absent without leave (AWOL) on 
9 September 1976 and he surrendered on 16 September 1976.

4.  On 23 September 1976, he received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

5.  On 22 December 1976, he accepted nonjudicial punishment (NJP) for being AWOL from 8 November to 29 November 1976.

6.  On 6 January 1977, the applicant's commander notified him that he was initiating action to discharge him under the provisions of chapter 5 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) with a general discharge.  The commander stated the reasons for his proposed action were:

* his poor attitude, lack of motivation, inability to adapt socially, inability to adapt emotionally, and failure to demonstrate promotion potential

* his hostility toward the Army, inability to accept instructions and directions, lack of cooperation with peers and superiors, and clearly substandard performance

* his having received NJP on two occasions

7.  The applicant was advised he had the right to decline this discharge, but if subsequent misconduct indicated that such action was warranted, he could be subjected to disciplinary or administrative separation procedures under other provisions of law or regulation.

8.  He was further advised that if he received a general discharge, he could expect to encounter substantial prejudice in civilian life.  The commander also advised the applicant of his right to: 

* consult with an officer of the Judge Advocate General's Corps prior to completing his acknowledgements
* submit a statement in his own behalf

9.  The applicant acknowledged he was notified of the proposed discharge action and voluntarily consented to the discharge.  He did not submit statements in his own behalf.
10.  On 17 January 1977, he was discharged under the provisions of the Expeditious Discharge Program.  He completed 1 year, 2 months, and 9 days of active service.  He had 28 days of time lost.

11.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	b.  Paragraph 5-37 (Expeditious Discharge Program) provided for the discharge of enlisted personnel who demonstrated they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  The regulation provided that no individual would be discharged under this provision unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either an honorable or a general discharge.

13.  Title 38, U.S. Code, provides for the VA to make a determination and award compensation for disabilities which were incurred in or aggravated by active military service.

DISCUSSION AND CONCLUSIONS:

1.  He had two periods of AWOL totaling 28 days.  His commander stated he demonstrated hostility toward the Army, an inability to accept instructions and directions, and a lack of cooperation with peers and superiors.  During his over 
1 year period of active service the highest grade he attained was PV2.  His performance was clearly substandard and he failed to demonstrate promotion potential.  Therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  The evidence shows he was properly and equitably discharged in accordance with regulations in effect at the time.  His commander notified him of the reasons and the type of discharge he was recommending.  He voluntarily consented to the proposed discharge.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  The applicant's expressed need to obtain benefits from the VA is noted.  However, the ABCMR does not upgrade properly issued discharges solely for the purpose of establishing eligibility for benefits.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for benefits should be addressed to the VA.

4.  In view of the above, there is insufficient substantive evidence to upgrade his discharge 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)                                         AR20130003538



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ABCMR Record of Proceedings (cont)                                         AR20130003538



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