IN THE CASE OF:	   

		BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20130013902 


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 to an honorable discharge.  

2.  The applicant states after completion of training, he thought he would make the Army a career.  He was assigned to Fort Stewart, GA, for the first 15 to 18 months.  He went from E-1 to E-3 and he was on the E-4 list.  One time he went on a 2-week field maneuver and when he returned, his wife had taken their two children and flown back to Ohio.  This devastated him and led him to make bad decisions.  The next thing he knows he was being discharged

3.  The applicant did not provide any 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.  The applicant enlisted in the Regular Army on 12 June 1979 and he held military occupational specialty 36K (Tactical Wire Operations Specialist).  He was promoted through the ranks to E-3 on 23 June 1980.

3.  His DA Form 2-1 (Personnel Qualification Record) reveals an extensive history of being absent without leave (AWOL) and/or in confinement:

* 24 to 30 September 1979, AWOL
* 13 August 1980, AWOL
* 1 to 4 May 1981, AWOL
* 15 to 21 May 1981, AWOL
* 22 May to 18 June 1981, AWOL and confinement
* 2 to 19 July 1981, AWOL

4.  His record also shows he was frequently counseled by members of his chain of command for various infractions, including:

* failing to be at his appointed place of duty
* being absent from duty and looking for work
* missing physical fitness training formation
* not showing up for work

5.  His record further shows a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 22 January 1980, for failing to go at the time prescribed to his appointed place of duty
* 18 August 1980, for being AWOL from 12 to 18 August 1980
* 5 December 1980, for twice failing to go at the time prescribed to his appointed place of duty
* 14 May 1981, for being AWOL from 1 to 5 May 1981

6.  On 23 June 1981, his immediate commander advised him that he intended to initiate action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph
5-31 (Expeditious Discharge Program (EDP)) by reason of poor attitude, lack of motivation, lack of self-discipline, and failure to demonstrate promotion potential. He recommended a general discharge.

7.  On 25 June 1981, the applicant acknowledged notification of the proposed separation action and consulted with legal counsel.  He was advised of the basis for the contemplated separation action under the provisions of Army Regulation 635-200, paragraph 5-31, the effect on future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  He acknowledged he understood if he were issued a general and he could expect to encounter substantial prejudice in civilian life.  He also declined making a statement in his own behalf.

8.  Subsequent to this action, his immediate commander initiated separation action against him under the EDP.  The immediate commander stated the applicant had repeatedly demonstrated he lacked self-discipline and motivation to function successfully as a member of the U.S. Army.  He lacks potential to progress because of his continuous inability to be at his appointed place of duty.  He had been punished under Article 15 on four separate occasions and he had been counseled on five separate occasions.  He has also been cited by civil authorities for 10 traffic violations.  Despite all the efforts of his chain of command, he consistently failed to change his poor attitude.

9.  On 1 July 1981, his intermediate commander recommended approval of the applicant discharge with a general discharge.

10.  On 2 July 1981, the separation authority approved the discharge under the provisions of Army Regulation 635-200, paragraph 5-31 and directed the applicant be furnished a General Discharge Certificate.  On 22 July 1981, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 1 year, 11 months, and 7 days of creditable active military service with 65 days of time lost.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  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. 

	b.  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 continually displayed a lack of self-discipline and inability to conform to military rules as evidenced by an extensive history of AWOL, four instances of NJP, and a record of negative counseling.  Accordingly, his chain of command initiated separation action against him under the EDP.  His separation was accomplished in compliance with applicable regulations with no indication of 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.  Contrary to his contention, his service was marred by misconduct throughout his military service.  His records do not show he was discharged because of any reason related to his wife; he was discharged due to apathy, poor attitude, lack of motivation, lack of self-discipline, and failure to demonstrate promotion potential.

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.

4.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20130013902



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ABCMR Record of Proceedings (cont)                                         AR20130013902



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