IN THE CASE OF:	   

		BOARD DATE:	  6 August 2015

		DOCKET NUMBER:  AR20140020166 


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 honorable.

2.  The applicant states:

* he was told his discharge would automatically be changed to honorable 6 months after his discharge
* he was released early due to a knee operation

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* 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 U.S. Army Reserve on 15 October 1976 for a period of 6 years.  He was ordered to active duty for training on 29 October 1976.

3.  Between December 1976 and May 1977, nonjudicial punishment (NJP) was imposed against him on three occasions for:

* failing to obey a lawful order
* being absent without leave (AWOL) from 3 to 17 April 1977
* participating in a breach of peace

4.  On 16 May 1977, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-39, under the Trainee Discharge Program.  His unit commander cited:

	a.  The applicant had clearly indicated through his lack of self-discipline and attitude that he did not have the ability to become a productive Soldier.

	b.  He refused to abide by the rules and regulations of the service and would not benefit from further training.

5.  On 19 May 1977, his unit commander initiated action to discharge him under the provisions of Army Regulation 635-200, paragraph 5-37 (Expeditious Discharge Program (EDP)), and recommended issuance of a General Discharge Certificate.  The commander cited:

	a.  The applicant had been in the service for over 6 months and refused to abide by its rules and regulations.  He would not benefit from further training.

	b.  His attitude and appearance were substandard.

	c.  He was AWOL for over 2 weeks and was given restriction and extra duties, but refused to abide by the limits of the restriction on at least two separate occasions.  He drank alcohol while restricted to the unit area.  He did not get along with his peers.

	d.  His actions showed he did not possess the ability to become a productive Soldier.

6.  On 19 May 1977, he acknowledged the notification of his proposed discharge from the Army.  He voluntarily consented to the separation and he elected not to submit a statement in his own behalf.  He further acknowledged he understood that if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.

7.  On 26 May 1977, the separation authority approved the separation action under the provisions of Army Regulation 635-200, paragraph 5-37, for failure to meet acceptable standards for continued military service.  He directed the issuance of a General Discharge Certificate.

8.  On 1 June 1977, he was discharged accordingly.  He completed 6 months and 19 days of total active service with 14 days of lost time.

9.  There is no evidence showing he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Paragraph 5-39, in effect at the time, governed the Trainee Discharge Program.  It provided for separation of service members who lacked the necessary motivation, discipline, ability, or aptitude to become productive Soldiers or who failed to respond to formal counseling.  The service member must have:

* voluntarily enlisted
* been in basic, advanced individual, on-the-job, or service school training prior to award of a military occupational specialty
* not completed more than 179 days of active duty on the current enlistment by the date of separation

11.  Soldiers could be separated when they demonstrated they:

* were not qualified for retention due to failure to adapt socially or emotionally to military life
* could not meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or demonstrated character and behavior characteristics not compatible with satisfactory continued service

12.  The Department of the Army began testing the EDP in October 1973.  In a message, dated 8 November 1974, the Deputy Chief of Staff for Personnel announced the expansion of the EDP.  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.

13.  Paragraph 5-37 of Army Regulation 635-200, in effect at the time, provided for the discharge of enlisted personnel who completed at least 6 months but less than 36 months of active duty and who demonstrated they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this provision of the regulation were issued an honorable or a general discharge.

14.  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.  The U.S. Army has never had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines the character of service or the reason for discharge, or both, was improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was informed his discharge would automatically be changed to honorable in 6 months; however, a discharge upgrade is not automatic.  Each case is decided on its own merits.

2.  Although he contends he was released early due to a knee operation, the evidence shows he was discharged under the EDP for failing to meet acceptable standards for continued military service.

3.  His record of service included three NJPs and 14 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  In addition, he voluntarily consented to his discharge.

5.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

6.  In view of the foregoing evidence, 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 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)                                         AR20140020166



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ABCMR Record of Proceedings (cont)                                         AR20140020166



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