BOARD DATE:	  31 December 2013

		DOCKET NUMBER:  AR20130005690 


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 under honorable conditions (general) characterization of service be upgraded to honorable.

2.  The applicant states, in effect, all the men in his family who served in the military received an honorable characterization of service.  He would like his characterization of service upgraded to honorable so he can uphold his family name.  He was discharged under the expeditious discharge program (EDP) because the Army did not believe that he developed or matured quickly enough to be promoted to a higher grade in a reasonable amount of time.  Additionally, he was never found guilty or convicted of any of the serious allegations against him.

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 28 March 2012
* Letter for the Army Review Boards Agency, dated 27 February 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 6 November 1979 and held military occupational specialty 91B (Medical Specialist).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  On 19 February 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* assaulting a female by grabbing her by the throat and dragging her from her automobile with the intent to rape
* disobeying the lawful order of a commissioned officer by consuming liquor in the barracks
* disobeying the lawful order or a commissioned officer by going off post in Army fatigues

4.  His record contains a letter of reprimand (LOR), dated 12 May 1981, which shows his commander reprimanded him based on a police blotter report.  His commander stated, "it has come to my attention that on the evening of 18 April 1981 you physically abused your wife for two hours by punching her with your fists and kicking her with your boots.  The fact that you continued this behavior in a deliberate manner for two hours makes this act even more despicable.  Your wife further states that this is not the first incident of this kind.  Your malicious assaults on your wife are not indicative of the discipline and high standards required by military personnel.  This type of behavior will not be tolerated.  Civilian authorities presently intend to prosecute you for this incident; therefore, court-martial charges cannot be brought against you."  On 22 May 1981, he acknowledged the LOR, indicated he had read and understood the allegations against him, and elected not to make a statement on his own behalf.

5.  On 15 May 1981, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully possessing one ounce (more or less) of marijuana. 

6.  His record contains a Standard Form (SF) 93 (Report of Medical History) dated 3 May 1982, two SFs 88 (Report of Medical Examinations), and a DA Form 3822-R (Report of Mental Status Evaluation) dated between 19 May 1981 and 
3 May 1982.  These forms show he met medical retention standards, he was medically qualified for separation, he was mentally responsible, and he had the mental capacity to participate in separation proceedings.

7.  The complete separation packet is not available for review in this case; however, his record does show that:

	a.  On 28 May 1982, his immediate commander advised him that he intended to initiate action to discharge him from the Army under the provisions of paragraph 5-31 Expeditious Discharge Program (EDP) of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) by reason of unsuitability for continued military service due to continuously causing discipline problems for his chain of command and having an attitude and displaying behavior that created an extremely distracting influence and detracted from individual and unit goals.  Additionally, his commander stated the applicant had received counseling with unfavorable results and tends to revert to his previous unfavorable behavior.  The commander felt that retaining the applicant in the Army would be burdensome to his chain of command and contrary to the Army's goals.  He recommended a general discharge.

	b.  On 1 June 1982, the applicant acknowledged notification of the proposed separation action.  

	c.  On 12 June 1982, the separation authority approved the discharge and directed that he receive a General Discharge Certificate and stated:

* he is of no use to the Army in any capacity
* he is totally unsuitable for further military service 
* he is a constant worry to his chain of command and cannot be counted upon
* he has been continuously counseled to no avail for his poor performance and behavior
* he has a belligerent attitude towards his chain of command and/or anyone having control over him
* he had been pending a chapter 14 discharge which was later dropped
* he had received several Article 15s and was under investigation by the U.S. Army Criminal Investigation Command (CID) for attempted rape

8.  On 4 June 1982, he was discharged under honorable conditions in accordance with Army Regulation 635-200, paragraph 5-31, by reason of 
EDP - failure to meet acceptable standards for retention.  He completed 2 years, 6 months, and 29 days of net active service.

9.  On 19 August 1997, the Army Discharge Review Board denied his request for an upgrade of his characterization of service.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 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 EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  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 continuously displayed a lack of self-discipline and inability to conform to military rules as evidenced by an extensive history of negative counseling, the receipt of NJP for the possession of marijuana, assault, and attempted rape, and an LOR for spousal abuse.  Accordingly, his chain of command initiated separation action against him under the EDP.  It is presumed his separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

2.  He was discharged because his chain of command felt he was of no use to the Army in any capacity due his poor performance and behavior, and belligerent attitude towards his chain of command.  Essentially, he was unable to adjust to normal Army standards.  

3.  His overall record of service shows he displayed an inability to adjust to the regimen of military life or respond to counseling.  Based on his overall record, his service does not meet the standards of acceptable conduct and performance 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 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)                                         AR20130005690



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ABCMR Record of Proceedings (cont)                                         AR20130005690



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