IN THE CASE OF:	  

		BOARD DATE:	  20 February 2014

		DOCKET NUMBER:  AR20130009282 


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, in effect, that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  He states that he feels his discharge should be corrected because he was mentally incapable of understanding what was happening at the time of his discharge due to the fact that he'd had a mental breakdown.  He contends that instead of trying to get him help for his problems, his leadership just threw him out of the Army.  Afterward, he started drinking and never stopped to try to understand what had happened to him.  But now, being locked up in prison for driving under the influence, he has had time to look at himself and ponder how he got to this period in his life.  He has been seeing a psychiatrist in prison and thinks that if he had been afforded an opportunity to receive mental healthcare while in the Army his life might have been different.  Being in prison has opened his eyes to a lot of things.

3.  He provides no evidence in support of this application.

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's record shows he enlisted in the Regular Army on 8 January 1976.  He completed initial entry training and was assigned to Fort Ord, CA for duty.  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for:

* using marijuana, a controlled substance
* being disrespectful to and refusing a lawful order from a noncommissioned officer

4.  On 20 May 1977, the applicant's immediate commander notified him of his intent to initiate action to discharge him from the Army under the provisions of paragraph 5-37 (Expeditious Discharge Program (EDP)), chapter 5 of Army Regulation 635-200.  The commander stated the reasons for this action were the applicant's poor attitude and inability to adapt emotionally to the Army.  The commander also stated the applicant's total disregard in obeying orders and performing his military duties in a military manner had caused problems not only within his platoon, but within the company as well.  The commander further stated the applicant's total lack of respect for authority had no place within the unit.  He noted the applicant had been counseled by his superiors all to no avail.
He informed the applicant that issuance of a less than honorable discharge could preclude his eligibility for many or all veteran's benefits and he could expect to encounter substantial prejudice in civilian life.  The commander also informed him that he intended to recommend he receive a General Discharge Certificate with a service characterization of under honorable conditions and advised him of his rights to consult with legal counsel to discuss the ramifications of this recommendation and to submit a statement in his own behalf, to decline the discharge, or to waive any of the aforementioned rights.

5.  He acknowledged receipt of the commander's notification of intent to separate him under the provisions of the EDP.  He consulted with legal counsel and was advised of the basis for the contemplated separation from the Army under the provisions of chapter 5 of Army Regulation 635-200, the effect on his future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  The applicant voluntarily consented to this separation action.  He acknowledged he understood that if he were issued a General Discharge Certificate he could expect to encounter substantial prejudice in civilian life.  He also declined to submit a statement on his own behalf.

6.  The applicant's immediate commander recommended that he be discharged under the provisions of the EDP.

7.  On 23 May 1977, the applicant underwent a pre-separation medical examination and there were no documented abnormalities.  Item 73 of his Standard Form 88 (Report of Medical Examination) shows he hand wrote the statement "I am in very good health" and authenticated the statement with his signature.  The results of the medical examination were reviewed and confirmed by the applicant and a physician on 31 May 1977.

8.  On 6 June 1977, the separation authority approved his discharge and directed that he be furnished a General Discharge Certificate.

9.  His record contains a DA Form 3082 (Statement of Medical Condition), dated 13 June 1977, wherein he indicated he'd undergone a separation medical examination more than 3 working days prior to his departure from place of separation and that, to the best of his knowledge, there had been no change in his medical condition.  He authenticated this document with his signature.

10.  On 13 June 1977, he was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he completed a total of 1 year, 5 months and 6 days of creditable active military service.  This form also shows:

* he was discharged under the provisions of Army Regulation 635-200, paragraph 5-37
* his service was characterized as under honorable conditions
* he was issued a General Discharge Certificate

11.  The applicant's record is void of any evidence and he has not provided any evidence showing he was diagnosed with any mental or physical condition which would have warranted medical treatment.  Additionally, there is no evidence showing he ever requested assistance with coping with any type of condition from any of the numerous resources available to Soldiers prior to his separation.

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

13.  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.  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.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

14.  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 applicant's contention that his general discharge under honorable conditions should be upgraded to an honorable discharge was carefully considered.

2.  His record reveals a disciplinary history that includes wrongful use of marijuana and being disrespectful to and refusing a lawful order from a noncommissioned officer

3.  The evidence of record shows he voluntarily consented to be discharged under the EDP.  His discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Considering all the facts of the case, the type of discharge directed and the reason for separation were appropriate.

4.  His record of service shows he displayed an inability to adjust to the regimentation of military life as reflected by his lack of response to counseling regarding his poor attitude, and lack of motivation.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct or performance of duty 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)                                         AR20130009282





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ABCMR Record of Proceedings (cont)                                         AR20130009282



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