IN THE CASE OF:	  

		BOARD DATE:	  17 July 2014

		DOCKET NUMBER:  AR20130019230 


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 his general discharge be upgraded to honorable and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank/grade as private (PV2)/E-2 vice PV1/E-1.

2.  The applicant states his DD Form 214 has the wrong rank and he would like his DD Form 214 to say honorable.  He grew from an immature kid to a responsible adult.

3.  The applicant provides orders, a letter, and his General Discharge Certificate.

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 March 1980 and he held military occupational specialty 19E (M48/M60A1/A3 Armor Crewman).  On 10 July 1980, he was assigned to the 4th Battalion, 40th Armor Regiment, Fort Carson, CO.  On 12 September 1980, he was promoted to the rank of PV2/E-2. 

3.  Between July and October 1980, he was frequently counseled by various members of his chain of command for his lack of initiative, substandard military bearing and appearance, failure to maintain his personal equipment and barracks room to standard, tendency to shirk his assigned duties, and his lack of self and military discipline.

4.  On 19 November 1980, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to report to his appointed place of duty at the prescribed time.  The punishment imposed included reduction to PV1/E-1.  On 19 November 1980, he was reduced to PV1/E-1.

5.  Between May and June 1981, he was frequently counseled by various members of his chain of command for leaving his assigned weapon unsecured, failing to be at his appointed place of duty at the prescribed time, substandard performance of duty, and substandard personal conduct.

6.  On 1 July 1981, he was notified by his immediate commander of the commander's intent to recommend him for discharge action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)), due to his poor attitude, lack of motivation, lack of self-discipline, and his failure to demonstrate promotion potential.  The commander stated he was recommending his service be characterized as general, under honorable conditions and that he had the right to decline the separation.

7.  On 6 July 1981, he acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and 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, under honorable conditions discharge, and of the procedures and rights that were available to him.  He further acknowledged that he understood if his service was characterized as under honorable conditions he could expect to encounter substantial prejudice in civilian life.  He voluntarily consented to the separation and elected not to submit a statement in his own behalf.

8.  On 8 July 1981, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 5-31, and directed his service be characterized as general, under honorable conditions.

9.  The applicant provides and his record contains Orders 132-651, dated 10 July 1981, issued by Headquarters (HQ), 4th Infantry Division, Fort Carson, CO, wherein he was reassigned to the U.S. Army Separation Transfer Point, Fort Carson, for separation processing effective 15 July 1981.  These orders show his rank as PV2/E-2.

10.  His record also contains Order 135-86, dated 14 July 1981, issued by HQ, 4th Infantry Division, Fort Carson, wherein it amended Orders 132-651 to show his rank as PV1 (emphasis added).

11.  On 15 July 1981, he was discharged.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31 - EDP, for failure to maintain acceptable standards for retention with an under honorable conditions (general) characterization of service.  He completed 1 year, 4 months, and 3 days of creditable active service.

12.  Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) of his DD Form 214 contains the entries PV1 and E-1, respectively.

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

14.  Army Regulation 635-200, paragraph 5-31, in effect at the time, 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.  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.

15.  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.

16.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  It stated in items 4a and 4b show the active duty grade or rank and pay grade at time of separation obtained from the Soldier's records (promotion or reduction orders).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was counseled numerous times by his chain of command for his lack of initiative, substandard performance, and substandard personal conduct.  In addition, he received NJP for failing to report to his place of duty.  Accordingly, his commander initiated separation action against him.  

2.  He voluntarily consented to his discharge and 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 therefore were appropriate.  

3.  Based on his overall record, it is clear the applicant's service did not meet the standards of acceptable conduct for Army personnel that would merit an honorable discharge.  

4.  With respect to the rank shown on his DD Form 214, his record clearly shows he was reduced to PV1/E-1 on 19 November 1980 and this is the rank he held at the time of his discharge. 

5.  In view of the foregoing, he is not entitled to the 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)                                         AR20130019230





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ABCMR Record of Proceedings (cont)                                         AR20130019230



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