IN THE CASE OF:	  

		BOARD DATE:  7 November 2013

		DOCKET NUMBER:  AR20130003869 


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 under honorable conditions discharge to an honorable discharge.  

2.  He states he was improperly separated from the service.  

3.  He provides no additional documents.  

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 21 October 1974. 

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice on three occasions for the following offenses:

* stealing property of the U.S. Government, of a value of about $16.06
* causing a breach of peace by using profane language toward a sergeant
* stealing 48 packages of gum, of a value of about 24.00 DM [deutsche mark], the property of the Crazy Horse Bar
* damaging by breaking open a gum machine, of a value of about 150.00 DM and damage being 59.00 DM

4.  The applicant's unit commander notified him of his proposed discharge action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37, the Expeditious Discharge Program (EDP), for failure to meet acceptable standards for continued military service.  The unit commander cited the basis for the proposed actions as the applicant’s inability to adjust to military life.  He was advised of his rights.  He acknowledged notification of the separation action, voluntarily consented to the discharge, and he didn't submit statements in his own behalf.  He acknowledged he understood that if he was furnished a general discharge under honorable conditions that he could expect to encounter substantial prejudice in civilian life.  He was provided the opportunity to consult with a Judge Advocate Officer.  

5.  The separation authority approved separation action under the provisions of Army Regulation 635-200, paragraph 5-37 with the issuance of a General Discharge Certificate.  

6.  On 13 August 1976, he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, EDP due to failure to maintain acceptable standards for retention.  He completed 2 years, 5 months, and 2 days of active military service.

7.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37 of the regulation in effect at the time provided for the discharge of enlisted personnel who had completed at least 6 months but less than 36 months of active duty and who had demonstrated that 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.  No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either a general or honorable discharge.

9.  Army Regulation 635-200, paragraph 3-7a, states 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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  He was advised of the effects of a discharge under honorable conditions and that he might expect to encounter substantial prejudice in civilian life.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.  He voluntarily consented to the discharge.

3.  His service record shows he received three Article 15s for various offenses.  

4.  It appears the applicant's chain of command determined his overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general under honorable conditions.  

5.  He has failed to show through the evidence submitted or the evidence of record that the type of discharge he received was in error or unjust.  Therefore, there is no basis for changing his discharge to honorable.  

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)                                         AR20130003869





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ABCMR Record of Proceedings (cont)                                         AR20130003869



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