BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140001930 


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 (general) discharge.

2.  The applicant states "I address the court in the manner of being rehab."  He had 9 days of lost time during his active duty service.  He is now a changed person and he feels his discharge should be upgraded.  He is doing very well [in life] and is getting ready to be baptized into the Kingdom Ministry.  His religious beliefs have changed his life for the better. 

3.  The applicant provides his DD Form 214 (Report of Separation and Record of Service).

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 records show he enlisted in the Regular Army on 28 May 1976.  He completed basic combat and advanced individual training under the one station unit training program at Fort Sill, OK.  He was awarded military occupational specialty 13B (Cannon Crewman).  

3.  On 3 December 1976, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty. 

4.  On 7 March 1977, he departed his unit in an absent without leave (AWOL) status; however, he returned to military control on 9 March 1977.  On 13 March 1977, he again departed his unit in an AWOL status but he again returned to military control on 15 March 1977. 

5.  On 24 March 1977, he was apprehended by civil authorities in Lawton, OK, for failing to appear in court for the offense of driving without a license and speeding in Texas.  He was transported to Texas and held in a jail pending trial.  He was fined and released to military control on 25 March 1977. 

6.  On 16 June 1977, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his continued misconduct (AWOL, not being prepared for inspection, sleeping on duty, financial problems, and incidents with civil law enforcement agencies).  The bar was ultimately approved by the appropriate approval authority.  

7.  On 29 August 1977, he was apprehended by civil authorities in Lawton, OK, for failing to pay traffic fines.  He was held in a jail pending trial.  He was fined and released to military control on 31 August 1977. 

8.  On 4 October 1977, he again departed his unit in an AWOL status but he again returned to military control on 6 October 1977. 

9.  On 27 October 1977, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 4 to 6 October 1977.  

10.  On 27 October 1977, the applicant’s immediate commander notified the applicant of his intent to initiate elimination from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of misconduct.  

11.  On 27 October 1977, the applicant acknowledged receipt of the notification of his pending separation action.  He was advised by counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200.  The applicant requested consideration of his case by a board of officers, a personal appearance before a board of officers, and elected not to submit a statement in his own behalf.  He further acknowledged that he understood that: 

	a.  he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him; and

	b.  in the event of the issuance of a general discharge he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and may encounter substantial prejudice in civilian life.

12.  Subsequent to his acknowledgement and consult with counsel, the applicant's immediate commander initiated elimination action against the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of misconduct, frequent incidents of a discreditable nature with civil or military authorities.  The reasons are listed as his repeated misconduct and resistance to attempts by his chain of command to help him toward rehabilitation. 

13.  On 4 November 1977, the applicant's intermediate commander recommended approval of the discharge action.  

14.  On 29 November 1977, while pending separation action, he was apprehended by civil authorities in Lawton, OK, for failing to pay a traffic violation.  He was confined in Lawton County Jail until the traffic fine was paid.  He was released to military control on 30 November 1977.  

15.  It appears his chain of command decided to give him a second chance.  No action was taken by the separation authority regarding the applicant's separation. 

16.  Following this action, he was frequently counseled by members of his chain of command for various infractions including: 

* being late to formation
* wearing unserviceable uniform
* sleeping on duty
* failing to show up for formations
* continually disobeying orders
* multiple instances of failure to repair

17.  On 8 February 1978, he accepted NJP under the provisions of Article 15 of the UCMJ for assaulting another Soldier.  

18.  On 28 February 1978, his immediate commander advised him that he intended to initiate action to discharge him from the Army under the provisions of paragraph 5-31 (Expeditious Discharge Program (EDP)) of Army Regulation   635-200 by reason of having an indifferent attitude toward the military, failing to meet and maintain acceptable standards, lack of discipline, and incidents of misconduct.  He recommended a general discharge.

19.  On 28 February 1978, 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 paragraph 5-31, Army Regulation 635-200, 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 voluntarily consented to this separation action and declined to make a statement in his own behalf.  He further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.

20.  Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him under the EDP.  His intermediate and senior commanders recommended approval of the discharge action.  

21.  On 7 December 1977, consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge action and directed that he be issued a General Discharge Certificate.  On 7 March 1978, he was accordingly discharged.  His DD Form 214 shows he completed a total of 1 year, 9 months, and 1 day of creditable active military service and he had multiple instances of lost time. 

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

23.  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.

24.  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 evidence of record shows the applicant continuously displayed a lack of self-discipline and an inability to conform to military rules as evidenced by several instances of NJP and/or negative counseling.  He was given multiple opportunities for rehabilitation but he failed to improve.  Accordingly, his chain of command initiated separation action against him and he voluntarily consented to discharge under the EDP. 

2.  His separation action 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.

3.  Based on his record of indiscipline which included multiple instances of NJP, an extensive history of negative counseling, multiple instances of AWOL, at least two instances of confinement, and a bar to reenlistment, his service clearly did not meet the standards of acceptable conduct and 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)                                         AR20140001930





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ABCMR Record of Proceedings (cont)                                         AR20140001930



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