IN THE CASE OF: 

		BOARD DATE:	  22 May 2014

		DOCKET NUMBER:  AR20130015371 


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

2.  He states that he was told his discharge would upgraded in 90 days.  He contends that his record speaks for itself and he just wants an honorable discharge.

3.  He provides no additional 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 24 February 1976.  He completed training for military occupational specialty 68F (Aircraft Electrician).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  However, he held the rank/grade of private (PV1)/E-1 at the time of discharge.

3.  The applicant's record contains 222d Aviation Battalion, Special Court-Martial (SPCM) Order Number 2, dated 17 March 1977, which shows the applicant was arraigned and tried before an SPCM which found him guilty of the following charges and specifications:

	a.  One specification of violation of Article 87 of the Uniform Code of Military Justice (UCMJ) by missing movement with his unit on 13 January 1977.

	b.  One specification of violation of Article 91, UCMJ, by willfully disobeying a lawful order from a warrant officer on 13 January 1977.

	c.  One specification of violation of Article 86, UCMJ, by failing to go at the time prescribed to his appointed place of duty on 17 January 1977.

4.  As a result, the applicant was sentenced to be reduced to the rank/grade of PV1/E-1, to forfeit $200 pay for 3 months, and to be confined at hard labor for 
6 weeks.  The sentence was adjudged on 14 March 1977.  However, only so much of the sentence as provides for the reduction of rank/grade to PV1/E-1, a forfeiture of $200 pay for 2 months, and confinement at hard labor for 6 weeks was approved and ordered to be duly executed.  The applicant was confined at the U.S. Army Retraining Brigade, Fort Riley, KS.

5.  Upon release from imprisonment, the applicant was reassigned to Fort Bragg, NC.

6.  The applicant's record contains a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) which shows he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, on 10 February 1978 for:

	a.  Violation of Article 91, UCMJ, by assaulting a warrant officer, who was in the execution of his duty, by charging toward him and yelling unintelligible obscenities at him on 2 February 1978.

	b.  Violation of Article 134, UCMJ, by being drunk and disorderly in quarters on 2 February 1978.

	c.  Violation of Article 86, UCMJ, by failing to go to his appointed place of duty at the time prescribed on 3 February 1978.

7.  On 14 February 1978, the applicant's immediate commander notified him of his intent to initiate action to discharge him from the Army under the provisions of the Expeditious Discharge Program (EDP) in accordance with chapter 5 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The commander stated the reasons for this action were the applicant's lack of motivation, lack of self-discipline, and failure to demonstrate promotion potential. The commander also stated he was initiating this action because of the applicant's quitter attitude, inability to accept instructions and directions, and clearly substandard performance and lack of cooperation with peers and superiors.  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.  He was also advised of his rights to consult with legal counsel to discuss the ramifications of this recommendation, to submit a statement in his own behalf, to decline the discharge, or to waive any of the aforementioned rights.

8.  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.

9.  The applicant's immediate commander recommended that he be discharged under the provisions of the EDP and the separation authority approved his discharge and directed that he be furnished a General Discharge Certificate.

10.  On 23 February 1978, 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, 10 months, and 29 days of creditable active military 


service and that he had 31 days of time lost.  This form also shows:

* he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31
* his Separation Program Designator (SPD) code was JGH (EDP)
* his service was characterized as under honorable conditions
* he was issued a General Discharge Certificate

11.  On 31 August 1993, the President of the Army Discharge Review Board (ADRB) informed the applicant that the ADRB had reviewed his case and decided to deny his appeal for an upgrade of his discharge.

12.  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.

13.  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 numerous offenses in violation of the UCMJ.

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)                                         AR20130015371





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ABCMR Record of Proceedings (cont)                                         AR20130015371



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