BOARD DATE:   1 May 2014

		DOCKET NUMBER:  AR20130015514 


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 under honorable conditions to an honorable discharge.

2.  The applicant states he followed the orders of his sergeant and was penalized while the sergeant was promoted, thus leading to his general discharge.  He was rated as 10-percent service-connected disabled by the Department of Veterans Affairs (VA) and is currently appealing for an increase in disability.

3.  The applicant provides a copy of his VA summary of benefits letter, dated 21 January 2013.

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 28 October 1980.  He held military occupational specialty 36K (Tactical Wire Operations Specialist).  He was advanced through the ranks to private first class/E-3 on 28 October 1981.

3.  On 11 January 1982, his immediate commander advised him that he intended to initiate action to discharge him from the Army under the Expeditious Discharge Program (EDP).  The commander stated the applicant lacked the motivation and self-discipline necessary to adapt to military life.  The applicant had been counseled on 10 separate occasions and had been given concrete, achievable goals to meet in order to correct his behavior.  The commander further stated the applicant's repeated violations of military standards, his failure to correct his deficiencies, and his antagonism toward rehabilitative efforts showed an unwillingness to adapt emotionally and socially to military life.  He recommended a general discharge.

4.  On 14 January 1982, 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, the effect on future enlistment in the Army, the possible effects of a general discharge, and the procedures and rights available to him.  He acknowledged he understood if he were issued a general discharge he could expect to encounter substantial prejudice in civilian life.  He indicated he would not make a statement in his own behalf.

5.  On 14 January 1982, the separation authority approved the applicant's discharge and directed the issuance of a General Discharge Certificate.  On 25 January 1982, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 
5-31.  His DD Form 214 shows he completed 1 year, 2 months, and 28 days of creditable active duty service.

6.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge.

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

	a.  Chapter 5, in effect at the time, provided that members who completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who demonstrated 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 could 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 or 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, currently in effect, 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.  There is no evidence to support his assertion that he followed the orders of his sergeant and was penalized while the sergeant was promoted, thus leading to his general discharge.

2.  The evidence of record shows the applicant continually displayed a lack of self-discipline and inability to conform to military rules as evidenced by a record of negative counseling.  Accordingly, his unit commander initiated separation action against him under the EDP.

3.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

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 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)                                         AR20130015514



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