IN THE CASE OF:	  

		BOARD DATE:	  26 August 2014

		DOCKET NUMBER:  AR20140000864 


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 under honorable conditions discharge to a fully honorable discharge.

2.  The applicant states when he separated from the Army, he was told his discharge would be automatically upgraded.

3.  The applicant provides no additional 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 6 October 1976.

3.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on:

   a.  6 April 1977, for being derelict in the performance of his duties by falling asleep at his guard post;

   b.  11 July 1977, for being absent from his unit from 20 to 22 June 1977;

   c.  5 October 1977, for being derelict in the performance of his duties by reading books while on guard and for failing to go to his appointed place of duty at the time prescribed on 29 September 1977; and

   d.  27 December 1977, for failing to go to his appointed place of duty at the time prescribed on 19 December 1977.

4.  The evidence contained in the applicant's record shows he was repeatedly counseled from 1 April to 12 December 1977 for missing formation and for failing to maintain military standards.  

5.  The applicant's immediate commander notified him that he intended to recommend his discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph   5-37 (Expeditious Discharge Program (EDP)), by reason of poor attitude, lack of self-discipline, and failure to demonstrate promotion potential.  The immediate commander noted that the applicant's duty performance was characterized by behavior which exhibited clear substandard performance and a lack of cooperation with peers and superiors.

6.  The applicant 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 from the Army, the effect on future enlistment in the Army, the possible effects of a general discharge, and the procedures and rights available to him.  He voluntarily consented to this discharge.  He also elected not to submit a statement in his own behalf.

7.  Subsequent to this acknowledgement, the applicant's immediate commander recommended issuance of a General Discharge Certificate.

8.  The separation authority approved the applicant's discharge under the provisions of paragraph 5-37 of Army Regulation 635-200 by reason of failure to meet acceptable standards for continued military service and directed the issuance of a General Discharge Certificate.  On 23 January 1978, the applicant was discharged accordingly.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 3 months, and 16 days of active military service.

9.  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.

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

11.  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 contends that his discharge should be upgraded.

2.  The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel for continued military service.  Accordingly, his immediate commander initiated separation action against him.  More importantly is the fact that he voluntarily consented to his discharge.

3.  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 discharge therefore were appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.

4.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20140000864



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ABCMR Record of Proceedings (cont)                                         AR20140000864



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