IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140007651 


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 general under honorable conditions discharge.

2.  The applicant states that after almost 2 years in the service he caught his wife cheating with another Soldier.  His chain of command denied him leave although he had more than 30 days available.  His chain of command let him down by never giving him a chance to redeem himself. 

3.  The applicant provides no supporting 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 enlisted in the Regular Army on 7 July 1980.  He completed training in short range air defense artillery and was assigned to an air defense battery at Fort Hood, Texas in October 1980.  

3.  During 1981 the applicant:

	a.  was counseled on numerous occasions, including – 

* on 20 March, for substandard duty performance
* on 29 May, when he was credited with being a good worker but cautioned about absences from his appointed place of duty (AAPD) and calling in sick when he had duty on weekends

	b.  received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on – 

* 14 April, for AAPD (the suspended part of the punishment was vacated on 8 May)
* 13 July, for AAPD and for striking his wife in the face several times
* 21 December, for AAPD on 3 and 4 December 

	c.  also received a formal written reprimand for being absent from guard duty on 2 May.

4.  His battery commander notified him that he was proposing separation from the Army under the expeditious discharge program.  He instructed the applicant to consult with counsel but advised him that he could not be compelled to consult counsel.  He also advised him that he could not be separated under these provisions without his consent. 

5.  The applicant acknowledged the notification, voluntarily consented to separation, declined to submit statements in his own behalf and indicated he did not want to consult with counsel. 

6.  The chain of command recommended approval and the separation authority directed a general discharge under honorable conditions.

7.  On 7 January 1982, he was released from active duty and transferred to the U.S. Army Reserve Control Group in pay grade E-1.  He had completed 1 year,  6 months, and 1 day of creditable service.  The highest pay grade he held was  E-2.

8.  There is no indication he applied to the Army Discharge Review Board for a discharge upgrade.

9.  The Department of the Army began testing the Expeditious Discharge Program in October 1973.  In a message, dated 8 November 1974, the Deputy Chief of Staff for Personnel announced the expansion of the Expeditious Discharge Program.  The program provided for the separation of Soldiers whose acceptability, performance of duty, and/or potential for continued effective service fell below the standards required for retention in the Army.  Soldiers could be separated under this program when subjective evaluation of their commanders identified them as lacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  An honorable or general discharge was required and there has never been any provision for an automatic upgrade of a discharge less than fully honorable.  At the time of the applicant's service, these provisions were incorporated in Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-31.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a states 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 requests an upgrade of his discharge and claims that his command let him down by not giving him a chance to redeem himself.

2.  Between January and December 1981, the applicant continued to recommit the same kind of minor offenses despite numerous counseling sessions and NJPs.  His assertion that he was given no chance to change his behavior is specious. 

3.  Furthermore, he willing accepted the discharge when he could have refused and offered nothing in his own defense.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of this request.  There is no basis for granting the applicant's request.

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)                                         AR20140007651



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ABCMR Record of Proceedings (cont)                                         AR20140007651



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