IN THE CASE OF:	  

		BOARD DATE:	  4 November 2014

		DOCKET NUMBER:  AR20140007244 


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.  He states in, effect, that he:

* was stationed in Germany
* had been threatened and beaten by another racial group on more than one occasion
* reported the incident and the command did not do anything
* went absent without leave (AWOL) for 13 days out of fear for his life
* was cooperative with the Inspector General and provided information on drug use, gang violence, but he was not protected
* left the Army out of fear for his life; he was threatened with death
* was treated inequitably and had no other option but to accept the expedited discharge

3.  He provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 15 January 1973.  He completed training for military occupational specialty 94B (Cook).  The highest rank/grade he attained while serving on active duty was private 
(PV2)/E-2.  

3.  The applicant's record contains Headquarters, 16th Engineer Battalion, Special Court-Martial (SPCM) Order Number 8, dated 23 January 1974, which shows the applicant was arraigned and tried before an SPCM which found him guilty of the following:

	a.  being AWOL from 9 through 21 December 1973; and

	b.  being AWOL from 7 through 8 January 1974.

4.  As a result, the applicant was sentenced to be reduced to the rank/grade of PV1/E-1, to forfeit $100 pay for 1 month, and to be restricted to the limits of the barracks, except where duty dictates otherwise, for 21 days.  

5. The applicant's record contains a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ) which shows he received nonjudicial punishment under the provisions of Article 15, UCMJ, on 4 February 1974, for violating a general regulation.

6.  On 26 April 1974, 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:  the applicant repeatedly demonstrated an inability to adapt to military life, he had a negative attitude, produced an adverse influence on the members within his section, and that counseling produced no noticeable improvement.  He informed the applicant that 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 he receive a General Discharge Certificate with service characterized as 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.

7.  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.

8.  The applicant's immediate commander recommended that he be discharged under the provisions of the EDP and the separation authority approved his discharge and directed that he be furnished a General Discharge Certificate.

9.  On 21 May 1974, he was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed a total of 1 year, 3 months, and 23 days of creditable active military service with 13 days of lost time due to being AWOL.

10.  There is no evidence in the applicant's personnel service record which shows that he sought assistance from his chain of command for issues involving threats, gang-related activity or fear, or that he notified his chain of command that his disciplinary problems were a result of these issues.

11.  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.

12.  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.

13.  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.  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 separation were appropriate.

4.  When presented with the voluntary consent to be discharged and after consulting with counsel, he elected not to make a statement concerning his behavior.

5.  His record of service shows he displayed an inability to adjust to the regimentation of military life as reflected by his lack of response to counseling and his poor attitude.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct or performance of duty for Army personnel. 




6.  Although the applicant alleges that threats, gang-related activity, and fear led to his acceptance of the expedited discharge, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention. 

7.  Based on the foregoing, there is insufficient evidence to grant the 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)                                         AR20140007244



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ABCMR Record of Proceedings (cont)                                         AR20140007244



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