BOARD DATE:	  18 June 2015

		DOCKET NUMBER:  AR20140018899 


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 to an honorable discharge or a medical discharge.  

2.  The applicant states:

* he was told his characterization of service would be upgraded to honorable after 6 months if he did not get into any trouble
* he is now not eligible to receive benefits from the Department of Veterans Affairs and feels that is unfair
* during his military service, he deployed to Egypt as part of Bright Star Exercise in 1981, and this should count for something
* his wife was stealing at the time and wanted to kill herself; he really did not want to get out of the Army
* he was young at the time and he was scared because of his family situation; he was also threatened by three other members 
* he feels he deserves an upgrade; his next stop is the news 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge 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 records show he was born in January 1960 and enlisted in the Regular Army at nearly 21 years of age on 6 November 1980.  He held military occupational specialty 11C (Indirect Fire Infantryman).  He was promoted through the ranks to E-3 on 1 October 1981. 

3.  He was assigned to the 2nd Battalion, 21st Infantry Regiment, Fort Stewart, GA.  He was awarded or authorized the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 

4.  His record also shows he was frequently counseled by members of his chain of command for various infractions, including:

* failing to show up for formation
* frequently missing formation 
* failing to report to his appointed place of duty
* missing physical fitness training formation
* not showing up for work

5.  His record further shows a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on:

* 2 June 1981, absenting himself from his appointed place of duty without authority 
* 2 June 1982, willfully disobeying a lawful order to correct uniform deficiencies on three occasions and failing to go at the time prescribed to his appointed place of duty
* 15 June 1982, a suspended punishment to forfeiture was ordered vacated 

6.  On 23 June 1982, his immediate commander advised him that he intended to initiate action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph
5-31 (Expeditious Discharge Program (EDP)) by reason of inability to conform to military standards, immaturity, lack of self discipline and lack of promotion potential.  He recommended a general discharge.
7.  On 23 June 1982, the applicant acknowledged notification of the proposed separation action and consulted with legal counsel.  He was advised of the basis for the contemplated separation action under the provisions of Army Regulation 635-200, paragraph 5-31; the effect on future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  He acknowledged he understood if he were issued a general discharge he could expect to encounter substantial prejudice in civilian life.  He also declined making a statement in his own behalf.

8.  Subsequent to this action, his immediate commander initiated separation action against him under the EDP.  The immediate commander stated the applicant was capable of only substandard performance and he exhibited a lack of motivation and displayed a poor attitude.  He again recommended a general discharge. 

9.  On 23 June 1982, his intermediate commander recommended approval of the applicant's discharge with a general discharge.

10.  On 24 June 1982, the separation authority approved the discharge under the provisions of Army Regulation 635-200, paragraph 5-31 and directed the applicant be furnished a General Discharge Certificate.  On 6 July 1982, the applicant was discharged accordingly.  

11.  His service medical records are not available for review with this case.  However, his records contain a Medical Examination for Separation Statement of Options, dated 6 July 1982, that states the applicant was advised that he was not required to undergo a medical examination for separation and that if he elected one, his records would be reviewed by a physician at the appropriate medical treatment facility.  He did not make any election.  His records were reviewed by a medical officer who did not find any disqualifying conditions. 

12.  The DD Form 214 he was issued at the time shows he was discharged from active duty under the provisions of paragraph 5-31h of Army Regulation 635-200 by reason of EDP, failure to maintain acceptable standards for retention.  He completed 1 year, 8 months, and 1 day of creditable active military service.

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  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. 

	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.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for medical evaluation boards (MEB), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

16.  Army Regulation 635-40 states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

17.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the honorable discharge:

	a.  The evidence of record shows the applicant continually displayed an inability to conform to military rules as evidenced by repeated instances of NJP and a record of 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.

	b.  The Army does not now have and it never had a policy wherein a characterization of service is upgraded due to passage of time. 

	c.  The applicant was nearly 21 years of age at the time of his enlistment.   There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

	d.  His records do not show he was discharged because of any reason related to his wife; he was discharged due to lack of motivation, lack of self-discipline, and failure to demonstrate promotion potential.

	e.  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.

2.  With respect to the medical discharge:

	a.  The applicant's medical records are not available for review with this case.  Additionally, the applicant did not provide any documentary evidence of what physical or behavioral health condition would have resulted in a medical discharge.  Likewise, he did not submit any evidence that he was diagnosed with a medical condition that failed retention standards and was found unfitting.  

	b.  The Army must find that a Soldier is physically unfit to reasonably perform the duties associated with the Soldier's rank, grade or specialty and assigned an appropriate disability rating before the Soldier can be medically separated.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  In this case the applicant did not produce any evidence to substantiate a basis for a medical discharge.

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)                                         AR20140018899





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ABCMR Record of Proceedings (cont)                                         AR20140018899



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