IN THE CASE OF:	  

		BOARD DATE:  2 January 2014

		DOCKET NUMBER:  AR20130006779 


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 (GD) to an honorable discharge (HD).

2.  The applicant states he entered the Army to escape a bad family situation.  His father was a military veteran who, upon retirement from government service, left the applicant's mother to be with his childhood sweetheart.  He wanted to get out of the house and his mother signed for him to join the military.  He was barely heavy enough to be accepted.  He was too young, and he did stupid things he regrets.

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.  On 15 November 1973, he enlisted in the Regular Army at the age of 17.  After completing initial entry training he was awarded military occupational specialty 36K (Field Wireman).  The highest rank/grade he attained was private two/E-2.

3.  On 26 March 1974, he accepted nonjudicial punishment for stealing a set of stereo headphones from the Post Exchange.

4.  On 12 August 1974, he was given a letter of reprimand for failing to report to his place of duty.

5.  On 22 August 1974, he accepted nonjudicial punishment for wrongfully having in his possession trace amounts of marijuana.

6.  On 8 January 1975, the applicant's commander informed him he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-37 (Expeditious Discharge Program (EDP)), and that he was recommending he receive a GD Certificate.  His commander stated the reasons for the proposed action were the applicant's:

* display of a complete sense of apathy toward his military duties
* lack of military bearing and job knowledge - indication of a substandard Soldier
* being apprehended for possession of marijuana
* admitting to continued use of drugs after attending counseling for drug abuse
* instances of nonjudicial punishment
* arrest and conviction for careless driving and driving without a valid driver license

The commander informed the applicant he could expect to encounter substantial prejudice in civilian life as the result of issuance of a GD.  He was also informed of his right to consult with legal counsel, to decline the discharge, and to submit a statement in his own behalf.

7.  On 8 January 1975, he acknowledged notification of his proposed discharge and voluntarily consented to the discharge.  He elected not to submit a statement in his own behalf, and he acknowledged he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps.  He further indicated he understood he could withdraw his voluntary consent to the discharge prior to the date of its approval by the discharge authority, and that if he declined to accept the discharge voluntarily, he could be subject to separation under other provisions of law or regulation.
8.  On 10 January 1975, the separation authority approved his discharge and directed he be given a GD Certificate.

9.  On 15 January 1975, he was discharged under the provisions of Army Regulation 635-200, paragraph 5-37 with a GD Certificate.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 2 months, and 1 day of total active service.

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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 5-37 of the version in effect at the time provided for the EDP.

		(1)  The EDP authorized discharge of individuals with at least 6 months but not more than 36 months of continuous active duty who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of one or more of the following:  (1) poor attitude, (2) lack of motivation, (3) lack of self-discipline, (4) inability to adapt socially or emotionally, (5) failure to demonstrate promotion potential. 

		(2)  Discharge under the EDP required an individual's voluntary consent.  A GD could not be issued unless the individual was given the opportunity to consult with appointed counsel.

	b.  Paragraph 3-7a provides that an HD 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 age at time of enlistment was noted.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge in this case.


2.  The evidence of record does not support his request for upgrade of his discharge.

3.  He voluntarily consented to discharge under the EDP.  The record shows all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He had the opportunity to make a statement voicing his concerns at the time of his separation processing and failed to do so.

4.  He received nonjudicial punishment for stealing a set of stereo headphones from the Post Exchange and for having in his possession a trace amount of marijuana.  He further admitted to continued use of drugs after attending a drug counseling program.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130006779



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ABCMR Record of Proceedings (cont)                                         AR20130006779



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