IN THE CASE OF:	  

		BOARD DATE:	  2 January 2014

		DOCKET NUMBER:  AR20130007959 


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.  The applicant states he volunteered for military service during the Vietnam era.

   a.  He states he was a good Soldier and acknowledges that he failed to show up for work on two occasions due to back spasms.

   b.  He requested an expeditious discharge because he was frustrated about having served for more than a year without being promoted.
   
   c.  He was removed from the motor pool and detailed as a driver with the responsibility to transport Soldiers to and from the airport.  Although he enjoyed this duty, the processing of his administrative discharge continued.

   d.  He adds that at the time he was young and confused.  However, he served proudly and his discharge should be upgraded.

3.  The applicant provides copies of documents from his military service records that he obtained based on a request for information.


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 (RA) on 24 July 1974 for a period of 3 years.  At the time, he was within 5 days of being 18 years of age.

3.  He was advanced to private/pay grade E-2 on 25 August 1974 and, upon completion of training, he was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic).  He was assigned to the 15th Adjutant General Company, 1st Cavalry Division, Fort Hood, TX, on 4 December 1974.

4.  The applicant received nonjudicial punishment (NJP) on two occasions for:

   a.  willfully disobeying a lawful command from his superior commissioned officer on 25 February 1975; and

   b.  being absent from his appointed place of duty on 30 April 1975.

5.  On 16 September 1975, the applicant's commander notified the applicant of his intent to initiate separation action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program (EDP)).  The reasons for his proposed action were the applicant's generally poor attitude towards service in the U.S. Army, lack of motivation, and lack of self-discipline.  He noted these factors had led to the applicant's failure to demonstrate promotion potential. 
The commander advised the applicant of his rights, the separation procedures involved, and that he was recommending that he be furnished a General Discharge Certificate.

6.  The applicant acknowledged he had been provided the opportunity to consult with a Judge Advocate General officer concerning the basis for the contemplated separation action.
	a.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him.

   b.  He elected to submit a statement in his own behalf and voluntarily accepted discharge from the U.S. Army.

	c.  The applicant and his counsel placed their signatures on the document.

7.  The applicant completed a sworn statement.  He stated that his parents were involved in a difficult divorce and he needed to be with them.  He also stated that he thought there was too much prejudice, back-stabbing, and lack of unity in the Army.  He added that his job didn't satisfy him and he hated the fact that noncommissioned officers had the best jobs.  He observed that they sit around and simply tell you what to do, but don't help with the job, and they get paid more than the workers.  He concluded by stating, "I hope I have shown you the situation from my point of view and that you understand why I want out."

8.  On 3 November 1975, the applicant underwent a separation medical examination and the examining physician found he was qualified for separation.

9.  The commander recommended approval of the applicant's separation action and that he be issued a General Discharge Certificate.

10.  The separation authority approved the recommended separation action and directed the applicant be issued a General Discharge Certificate.

11.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 13 November 1975 under the provisions of Army Regulation 635-200, paragraph 5-37, and his service was characterized as under honorable conditions.  He completed 1 year, 3 months, and 20 days of active service.

12.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

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

   a.  Chapter 5 (Separation for Convenience of the Government), paragraph
5-37, in effect at the time, provides for the separation of Soldiers under the EDP who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and/or failure to demonstrate promotion potential.  Members separated under the EDP could be awarded a character of service of honorable or general, under honorable conditions, as appropriate.

   b. Chapter 3, 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 applicant contends that his general, under honorable conditions discharge should be upgraded to an honorable discharge because he was young and confused at the time, his acts of indiscipline were due to him suffering back spasms, and he was a good Soldier overall.

2.  The applicant successfully completed training, was awarded MOS 63B, and had completed more than 7 months of service without a discreditable incident of record.  Thus, his contention that he was immature is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The evidence of record shows the applicant underwent a medical examination during his separation processing.  There is no indication of any unfitting medical conditions.

4.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 5-37, was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Considering all the facts of the case, the type of discharge directed and the reasons therefore were appropriate.

5.  The applicant's military personnel records show he received NJP on two occasions -- for willfully disobeying a lawful command from his superior commissioned officer and being absent from his appointed place of duty.  In addition, he was discharged based on his poor attitude towards service in the U.S. Army, lack of motivation, lack of self-discipline, and failure to demonstrate promotion potential.  Moreover, he completed less than 16 months of his 3-year active duty service obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge. 

6.  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)                                         AR20130007959



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ABCMR Record of Proceedings (cont)                                         AR20130007959



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