BOARD DATE:	  25 September 2014

		DOCKET NUMBER:  AR20140003545 


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 discharge under honorable conditions (general) to an honorable discharge.

2.  The applicant states:

* When he left the Army he had a "general but honorable discharge"
* He was told and he received a letter after 2 years stating that his discharge was totally honorable
* He has insurance that needs his correct discharge paperwork
* He would not have left if his sergeant major didn't tell him that in 2 years his discharge would be totally honorable
* He could not leave with a bad discharge because of a promise he made to his parents
* One of the reasons he took the general discharge was because he was hurt in the Black Forest in Germany in 1981

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 29 October 1979.  He completed training as a food service specialist.

3.  The applicant accepted nonjudicial punishment on 2 August 1981 for failing to to go at the time prescribed to his appointed place of duty and for assault by pulling a knife on another Soldier.

4.  The applicant was notified of action to eliminate him from the Army under the Expeditious Discharge Program (EPD).  His commander cited substandard performance, unsuitability, and his antisocial personality as a basis for this recommendation.  The applicant acknowledged receipt of the notification.  He indicated that he understood that if his service was characterized as under honorable conditions he may expect to encounter substantial prejudice in civilian life.  He also acknowledged that he was advised of his right to consult with an officer of the Judge Advocate General's Corps prior to completing the acknowledgement of the proposed separation action he was also advised of his right to decline the separation action and to submit a statement in his own behalf 

5. On 3 December 1981, the applicant acknowledged notification of his proposed separation under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 5-31 under the EDP.

* He further indicated that he voluntarily consented to the separation action and that he elected not to submit a statement in his own behalf
* He acknowledged there was no automatic upgrading or review by any government agency of a characterization of service, which was under honorable conditions
* he must apply to the Army Discharge Review Board (ADRB) or to this Board if he wished a review of the characterization of his service
* the act of consideration by either board did not imply that his characterization of service would be upgraded

6.  The appropriate authority approved the applicant's discharge and directed the issuance of a General Discharge Certificate.

7.  On 23 December 1981, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, for failure to maintain acceptable standards for retention.  He completed 2 years, 1 month, and 25 days of net active service this period.  He received a General Discharge Certificate.

8.  A review of the available records failed to show that the applicant had ever applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37 of this regulation provided for the discharge of enlisted personnel who had completed at least 6 months but less than 36 months of active duty and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  The regulation provided that no individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either a general or honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  There is no evidence in the available record, nor has the applicant provided any evidence, showing he was ever told that his discharge would be automatically upgraded after 2 years.

3.  The available evidence shows he acknowledged his understanding that there was no automatic upgrading or review by any government agency of a characterization of service.  According to the applicable regulation, no individual was discharged under the EDP unless the individual voluntarily consented to the proposed discharge.  

4.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.

5.  In view of the foregoing, the applicant's request should be denied.


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)                                         AR20140003545



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ABCMR Record of Proceedings (cont)                                         AR20140003545



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