BOARD DATE:	  18 November 2014

		DOCKET NUMBER:  AR20140005993 


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 that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states his discharge was too harsh.

3.  The applicant does not provide any additional documents. 

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 record shows he enlisted in the Regular Army on 13 January 1976.  He completed the training requirements for military occupational specialty 12B (Combat Engineer).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.
3.  The applicant's record contains two DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) which show he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, on:

* 19 July 1976 for being absent with leave (AWOL) from 6 through 9 July 1976 and from 12 through 14 July 1976
* 28 August 1976 for failure to report to his appointed place of duty at the time prescribed on 28 July 1976

4.  On 27 August 1976, the applicant's immediate commander notified him of his intent to initiate action to discharge him from the Army under the provisions of the Expeditious Discharge Program (EDP) in accordance with chapter 5 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The commander stated the reasons for this action were:  for being AWOL on two occasions, breaking restriction four times, numerous other violations, and that counseling produced no noticeable improvement.  He informed the applicant the issuance of a less than honorable discharge could preclude his eligibility for many or all veteran's benefits and he could expect to encounter substantial prejudice in civilian life.  The commander also informed him that he intended to recommend that he receive a General Discharge Certificate with a service characterization of under honorable conditions.  He was also advised of his rights to consult with legal counsel to discuss the ramifications of this recommendation, to submit a statement in his own behalf, to decline the discharge, or to waive any of the aforementioned rights.

5.  He acknowledged receipt of the commander's notification of intent to separate him under the provisions of the EDP.  He consulted with legal counsel and was advised of the basis for the contemplated separation from the Army under the provisions of chapter 5 of Army Regulation 635-200, the effect on his future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  The applicant voluntarily consented to this separation action.  He acknowledged he understood that if he were issued a General Discharge Certificate he could expect to encounter substantial prejudice in civilian life.  He also declined to submit a statement on his own behalf.

6.  The applicant's discharge was approved under the provisions of the EDP and the separation authority approved his discharge and directed that he be furnished a General Discharge Certificate.

7.  On 10 September 1976, he was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed a total of 7 months and 22 days of creditable active military service with 5 days of lost time due to being AWOL.

8.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board’s 15-year statute of limitations.

9.  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.

10.  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's contention that his general discharge under honorable conditions should be upgraded to an honorable discharge was carefully considered.

2.  His record reveals a disciplinary history that includes offenses in violation of the UCMJ.

3.  The evidence of record shows he voluntarily consented to be discharged under the EDP.  When presented with the voluntary consent to be discharged and after consulting with counsel, he elected not to make a statement concerning his behavior.  His discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Considering all the facts of the case, the type of discharge directed and the reason for discharge was appropriate.

4.  Although the applicant alleges that his discharge was too harsh, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention. 

5.  Based on the foregoing, there is insufficient evidence to grant 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)                                         AR20140005993



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ABCMR Record of Proceedings (cont)                                         AR20140005993



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