IN THE CASE OF:	  

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140007001 


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 a discharge upgrade.

2.  The applicant states, in effect, his discharge should be upgraded to honorable.  After being discharged he received paperwork showing a court-martial conviction he received had been vacated.  He had been working for a company that built military vehicles for 7 years until he was laid off.  He wishes to obtain benefits from the Department of Veterans Affairs (VA). 

3.  The applicant provides a self-authored statement, DD Form 214 (Certificate of Release or Discharge from Active Duty), a letter from the U.S. Army Judiciary, and special court-martial orders.

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.  Records show the applicant enlisted in the Regular Army on 4 November 1980.  He completed basic combat training and although he was awarded military occupational specialty (MOS) 98J (Electronic Warfare/Signal Intelligence Noncommunications Collector), this MOS was subsequently withdrawn.  He was sent for training in MOS 63B (Wheeled Vehicle Mechanic), but he never completed this training.  The highest rank/grade he held while on active duty was private first class/E-3.

3.  The available records show he was convicted by a special court-martial of one specification of being absent without leave (AWOL) on 29 May 1982.  This conviction was ultimately vacated and set aside by Special Court-Martial Order Number 10, Headquarters, Department of the Army, Washington, DC, dated 
29 April 1983.

4.  The available records also show his unit initiated separation action, on 
2 September 1982, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5, paragraph 5-31 (Expeditious Discharge Program).  The applicant's commander stated the applicant could not adapt socially or emotionally to military life.  He had demonstrated character and behavior not compatible with military life.

5.  On 2 September 1982, the applicant acknowledged notification of his commander’s proposed separation action and opted not to submit statements in his behalf.  In his acknowledgement, he indicated he understood he could consult with an attorney, and by receiving an under honorable conditions characterization of service he could encounter substantial prejudice in civilian life.

6.  In an undated endorsement, the separation authority approved the unit commander’s request to discharge the applicant and directed the issuance of a General Discharge Certificate.  On 21 October 1982, he was discharged accordingly.

7.  His DD Form 214 shows he completed 1 year, 10 months, and 20 days of active military service.  It also shows he had 29 days of lost time.  Item 24 (Character of Service) of his DD Form 214 shows "under honorable conditions" and item 25 (Separation Authority) shows "Chap 13, AR 635-200.”  Item 28 (Narrative Reason for Separation) shows “unsatisfactory performance.”

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

   a.  The regulation in effect in September 1982 contained the provisions for the Expeditious Discharge Program (EDP) under chapter 5.  This program was designed to eliminate Soldiers who demonstrated they were unable to meet acceptable standards before a board or other punitive action was required.  Soldiers were considered who displayed:

* a poor attitude
* lack of motivation
* lack of self-discipline
* inability to adapt socially or emotionally
* failure to demonstrate promotion potential

 	b.  The regulation in effect in October 1982 when the applicant was discharged removed the EDP.  Chapter 13 (Separation for Unsatisfactory Performance) replaced chapter 5 for separating Soldiers meeting the former EDP criteria.

	c.  Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.

	d.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant continually displayed a lack of self-discipline and inability to conform to military rules as evidenced by his AWOL and negative counseling.  Accordingly, his chain of command initiated separation action against him under the EDP.  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 were appropriate considering all the facts of the case.

2.  His overall record of service shows he displayed an inability to adjust to the regimen of military life or respond to counseling.  Based on his overall record, his service does not meet the standards of acceptable conduct and performance for Army personnel.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20140007001



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ABCMR Record of Proceedings (cont)                                         AR20140007001



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