BOARD DATE:	 3 December 2013 

		DOCKET NUMBER:  AR20130006612 


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, under honorable conditions discharge to an honorable discharge.

2.  The applicant states he wants his discharge upgraded under the 2-year agreement.

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.  Having had prior active service, the applicant enlisted in the Regular Army on 12 September 1979 and he held military occupational specialty 64C (Motor Transport Operator).  On 4 October 1979, he was assigned to the 51st Transportation Company, Germany.

3.  On 9 October 1979, he was apprehended by the German police in Mannheim, Germany, and charged with aggravated assault and communicating a threat to a German national.  On 10 October 1979, he was released to the control of the military police and he was subsequently released to his unit.

4.  Between 2 November 1979 and 28 January 1980, he was frequently counseled by various members of his chain of command for repeatedly failing to be at his appointed place of duty at the prescribed time, substandard performance of duty, substandard personal conduct, inappropriate behavior, disobeying lawful orders, taking money belonging to another Soldier, and forging a sick slip to falsely show he was given 72 hours quarters.

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

* 19 November 1979, for three specifications of failing to be at his appointed place of duty at the prescribed time
* 11 January 1980, for acting disorderly in a public place

6.  On 4 February 1980, 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), chapter 5 (Expeditious Discharge Program). 

7.  On 14 February 1980, he acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, the possible effects of a general under honorable conditions discharge, and of the procedures and rights that were available to him.  He further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.  He also acknowledged that he understood he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge (emphasis added).  He voluntarily consented to the separation and elected not to submit a statement in his own behalf.

8.  On 19 February 1980, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 5 for his substandard performance and directed the issuance of a General Discharge Certificate.  On 5 March 1980, he was discharged accordingly.  
9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, expeditious discharge program, by reason of failure to meet acceptable standards for retention with an under honorable conditions characterization of service.  He completed 5 months and 24 days of creditable active service during this period of service and he had a total of 8 months and 19 days of creditable active service.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Chapter 5, Army Regulation 635-200, 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.

12.  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 numerous times he was counseled by his chain of command and the NJP he received on two occasions for failing to report to his place of duty on three separated occasions and for disorderly conduct.  Accordingly, his commander initiated separation action against him.  

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights and he voluntarily consented to his discharge.  The type of discharge directed and the reason for separation therefore were appropriate.  

3.  The evidence of record shows the applicant was counseled that he was ineligible to enlist in the Army for a period of 2 years after his discharge date.  This in no way implied that his discharge would be upgraded after 2 years.  The Army has never had a policy of automatically upgrading discharges.  

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20130006612





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ABCMR Record of Proceedings (cont)                                         AR20130006612



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