IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140013589 


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 the basis for his discharge was not fully explained or understood by him at the time of his separation processing.  He adds an upgrade of his discharge will allow him to receive full veterans' benefits.

3.  The applicant 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 enlisted in the Regular Army on 27 December 1976 for a period of 3 years.  Upon completion of training, he was awarded military occupational specialty 63C (Track Vehicle Mechanic).

3.  His DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost) that he was absent without leave (AWOL) from 22 August 1977 through 
23 August 1977.

4.  A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) shows the applicant accepted nonjudicial punishment (NJP) on 
2 September 1977.  It also shows the suspension of the punishment of reduction to private (E-1), which had been suspended for 180 days, was vacated by the commander and he ordered the unexecuted portion of the punishment duly executed.

5.  On 20 September 1977, the commander notified the applicant of his intent to initiate separation action to discharge him under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 5 (Separation for Convenience of the Government), Expeditious Discharge Program (EDP).

   a.  The reasons for his proposed action were the applicant's poor attitude, lack of motivation, and lack of self-discipline.  He also noted he was initiating the action because of the applicant's quitter attitude, inability to accept instructions and directions, and substandard performance.

   b.  The commander advised the applicant of his rights, the separation procedures involved, and that he was recommending that he be furnished a General Discharge Certificate.

6.  On 22 September 1977, the applicant consulted with legal counsel.

   a.  The applicant acknowledged notification of the commander's intent to discharge him under the EDP for the reasons cited; he indicated with his initials his consent to the proposed discharge action; and he elected not to make or submit a statement in rebuttal in his own behalf.

   b.  His consulting counsel certified that the applicant was advised by him of the basis for the contemplated separation action with a General Discharge Certificate, its effect, and the rights available to him.  He also certified that the applicant personally and knowingly made his choices.

   c.  The applicant and his counsel placed their signatures on the document.
7.  The commander forwarded the proposed separation action to the separation authority and recommended the applicant be furnished a General Discharge Certificate.

8.  The separation authority approved the recommended separation action and directed the applicant be issued a General Discharge Certificate.

9.  The applicant's DD Form 214 shows he was discharged on 27 October 1977 UP AR 635-200, paragraph 5-37, for failure to maintain acceptable standards for retention (EDP).  His service was characterized as under honorable conditions.  He completed 9 months and 29 days of active service and he had 2 days of time lost.

10.  A review of the applicant's military service records failed to reveal evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

11.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.

   a.  Chapter 5, paragraph 5-37, in effect at the time, provides for the separation of Soldiers under the EDP who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and/or failure to demonstrate promotion potential.  Members separated under the EDP could be awarded a character of service of honorable or general, under honorable conditions, as appropriate.

   b.  Chapter 3, 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 contends his general, under honorable conditions discharge should be upgraded to a fully honorable discharge because the basis for his discharge was not fully explained or understood by him at the time of his separation processing and an upgrade will allow him to receive full veterans' benefits.
2.  The evidence of record shows the applicant was advised by both his company commander and his consulting counsel of the basis for the separation action, the type of discharge certificate being recommended, its effect, and the rights available to him.  In addition, the applicant acknowledged with his signature that he was notified of the commander's intent to discharge him under the EDP for the reasons cited and he consented to the proposed discharge action.  Thus, the evidence of record refutes the applicant's contention that the separation action was not explained to him and that he did not understand the separation action.

3.  The applicant's administrative discharge UP AR 635-200, paragraph 5-37, under the EDP for failure to maintain acceptable standards for retention was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason for and type of discharge directed were appropriate and equitable.

4.  The evidence of record shows the applicant went AWOL from his unit.  When he returned to his unit he received NJP and the portion of the punishment pertaining to his reduction was suspended.  The commander subsequently vacated the suspended portion of the punishment and the applicant was reduced to private (E-1).  In addition, he completed less than 10 months of his 3-year enlistment obligation.  Thus, his record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs or appropriate government agency.

6.  In view of the foregoing, 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)                                         AR20140013589



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ABCMR Record of Proceedings (cont)                                         AR20140013589



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