IN THE CASE OF:  	  

		BOARD DATE:  28 April 2015	  

		DOCKET NUMBER:  AR20140016232 


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 discharge under honorable conditions to honorable and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show all awards and decorations he is authorized.

2.  The applicant states, in effect:

* his characterization of service should be upgraded because, before the incident which led to his discharge under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), his duty performance was excellent
* after being discharged, he was asked to return to duty but was unable to do so; his reentry (RE) code is RE-3
* because he is currently incarcerated, he does not have access to his military records, as such he is unable to provide additional documentary evidence; his records should be available through the enlistment branch in Pittsburgh, PA
* he additionally requests all authorized awards and decorations be added to his DD Form 214, and that all that are found be considered by the Board when reviewing his request for upgrade of his discharge

3.  The applicant provides a:

* DD Form 214
* Department of Veterans Affairs (VA) Form 10-10EZ (Application for Health Benefits)
* Standard Form 180 (Request pertaining to Military Records)

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 15 September 1981.  After completing one station unit training, he was awarded military occupational specialty 19E (M48-M60A1/A3 Armor Crewman).  The highest rank/grade held was private first class/E-3.  His first and only assignment was in Germany.

3.  Available records show the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions:

* on 21 May 1982 for one specification of unlawfully striking a noncommissioned officer, one specification of failing to obey a lawful order from a military policeman, and one specification of carrying a concealed weapon
* on 6 August 1982, for one specification of assaulting another Soldier (the form shows "continuation" but no continuation page is attached); punishment included reduction to private/E-1

4.  On 17 September 1982, the applicant's commander notified him he was being considered for separation under the provisions of chapter 5, paragraph 5-31 (Expeditious Discharge Program (EDP)).  He cited the applicant's repeated misconduct, ill-discipline, and irresponsibility as indications he could not meet minimum standards of conduct.  The commander noted he had been frequently counseled by his chain of command and stubbornly resisted guidance.  He was informed he would be recommended for a general discharge under honorable conditions.

5.  On 20 September 1982, the applicant acknowledged he had received notification, declined military legal counsel, and chose not to submit statements in his own behalf.

6.  In an undated indorsement, the separation authority approved the commander's recommendation and directed the applicant be discharged with a general discharge under honorable conditions.  

7.  Effective 1 October 1982, a revised Army Regulation 635-200 was implemented.  The EDP was discontinued and those Soldiers who would have been discharged under this provision were instead separated under the provisions of chapter 13.

8.  On 26 October 1982, the applicant was discharged as directed by the separation authority.  His DD Form 214 shows he served for 1 year, 1 month, and 12 days of net active creditable service.  The character of service is under honorable conditions.  The separation authority is shown as chapter 13, Army Regulation 635-200.  The separation code (SPD) is LHJ (LMJ), and the RE code is RE-3.  He was awarded or authorized:

* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Pistol Bar (.45 Caliber)

9.  A review of his DA Form 2-1 (Personnel Qualification Record - Part II), item 9 (Awards, Decorations, and Campaigns) does not show any additional awards that are not already reflected on his DD Form 214.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  A member may be separated under chapter 13 when it is determined he/she is unqualified for further military service because of unsatisfactory performance.  Service can be characterized as either honorable or under honorable conditions.  Criteria include:

* when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training, or become a satisfactory Soldier
* the seriousness of the circumstances are such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale
* it is likely the Soldier will be a disruptive influence in present and future duty assignments
* it is likely the circumstances forming the basis for initiation of separation proceedings will continue or recur
* the ability of the member to perform duties effectively in the future, including potential for advancement or leadership, is unlikely

	b.  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 request for an upgrade of his general under honorable conditions discharge was carefully considered; however, there was insufficient evidence to support his request.

2.  The evidence of record shows a pattern of unsatisfactory performance.  The 2 nonjudicial punishments, coupled with his demonstrated lack of self-discipline and inability to conform to military rules led to his chain of command initiating separation action against him.  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.

3.  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.

4.  As to the applicant's awards and decorations, a review of all available records did not reveal any awards, decorations, citations, or campaign ribbons beyond what was already shown on his DD Form 214.  Therefore, no change of his DD Form 214 is required.


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)                                         AR20140016232



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140016232



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1