IN THE CASE OF:	  

		BOARD DATE:	  30 July 2015

		DOCKET NUMBER:  AR20140020820 


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 his general discharge be upgraded to honorable.  He also requests his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his pay grade as E-3 and his military occupational specialty (MOS) as 11E1OP (sic, 11E1P) ("P" indicating the special qualification identifier (SQI) for airborne qualification) instead of 11E1O. 

2.  He states he was told his discharge could be changed to honorable after 
6 months.  He provides a synopsis of his military career and states he wanted to be the best Soldier he could be.  He adds that he enjoyed his time in the military and would give anything to do it over again.  He continues by expounding on his career since the military.  He states he quit smoking marijuana, he has been married to the same woman for 36 years, and for the past 15 years he has been working in the maintenance department in the same school district where he attended high school.

3.  He provides:

* Self-authored statement
* DD Form 214 
* Certificates of Training
* Certificates of Completion
* DA Form 1307 (Individual Jump Record)



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 10 July 1975.  After completing basic and advanced individual training he was awarded MOS 11E (Armor Crewman).  

3.  Special Orders 325, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA, dated 21 November 1975, show he was awarded the "Parachute Badge" and SQI "P" effective 10 November 1975.  

4.  On 5 February 1976, he was promoted to the rank/grade of private first class (PFC)/E-3.  On 29 October 1976, he was promoted to specialist four (SP4)/E-4.  

5.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on 20 April 1977 for:  wrongfully selling hash oil on 25 February 1977; violating a lawful general regulation by possessing three trip flares, an M49A1, and one smoke grenade on 23 March 1977; and wrongfully possessing 173 grams of marijuana on 23 March 1977.  His punishment consisted of reduction from E-4 to private (PVT)/E-1 and 30 days at the Correctional Custody Facility.

6.  His service record contains numerous counseling statements that show he was counseled on the following dates for the below listed infractions:

* 18 July 1975, substandard job performance and attitude
* 23 June 1977, haircut
* 27 July 1977, late for formation
* 3 September 1977, attitude and lack of cooperation
* 13 September 1977, substandard job performance and attitude
* 20 September 1977, haircut
* 24 September 1977, haircut
7.  Special Orders 147-04, issued by Headquarters, 82d Airborne Division, Fort Bragg, NC, dated 1 August 1977, show his parachutist duty was terminated.  Additionally, the SQI of "P" was withdrawn from his MOS under the provisions of Army Regulation 600-200 (Enlisted Personnel Management System) paragraph 2-54a. 

8.  On 8 September 1977, he was advanced to PV2/E-2.  His record is void of any evidence showing he was subsequently advanced to PFC/E-3.

9.  On 29 September 1977, he underwent a mental status evaluation.  The psychiatrist determined that he was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings.   

10.  On 29 September 1977, the applicant’s immediate commander notified the applicant of his intent to recommend his discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program (EDP)) for poor attitude, lack of motivation, and lack of self-discipline.  He further stated that he was initiating this action based on the applicant's “quitter” attitude and substandard performance.  The commander recommended the applicant receive a General Discharge Certificate. 

11.  On 3 October 1977, the applicant acknowledged receipt of the notification of his proposed separation action.  He acknowledged he had the opportunity to consult with legal counsel and he was advised of the basis for the contemplated separation from the Army, the effect and rights available to him, and the possible effects of a general discharge.  He voluntarily consented to this discharge and he elected not to submit a statement in his own behalf.

12.  On an unknown date, the separation authority approved the applicant's discharge under the provisions of paragraph 5-37 of Army Regulation 635-200 with the issuance of a General Discharge Certificate.  He stated that his recommendations and findings remained unchanged.  

13.  His DD Form 214 shows he was discharged on 13 October 1977 with an under honorable conditions (general) characterization of service.  He completed 2 years, 3 months, and 4 days of active service.  His DD Form 214 also shows in: 

* item 6a/b (Grade, Rate or Rank/Pay Grade) PV2/E-2
* item 7 (Date of Rank) 8 September 1977
* item 16a (Primary Specialty Number and Title) 11E1O Armor Crewman
14.  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 limitation.

15.  The applicant provided numerous certificates that show he successfully completed:

* the Airborne Course on 25 November 1975
* 8 weeks of Armor Advanced Individual Training
* the Generator Operator Course from 28 February to 4 March 1977 (40 hours)

16.  Army Regulation 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, provided 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 states he was told that his general discharge could be upgraded to fully honorable after 6 months.  There are no provisions in the Army regulations for automatically upgrading a discharge after a period of time has elapsed.  He must provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade.  Therefore, his contention that his discharge should have been upgraded after 6 months is not sufficient as a basis to upgrade his discharge now.

2.  Additionally, the fact that he has turned his life around and has been a good citizen since his discharge from the military is commendable.  However, good post-service conduct alone is not a basis for upgrading his discharge.

3.  The evidence of record shows his discharge under Army Regulation 635-200, paragraph 5-37, was based on his poor attitude, lack of motivation, and lack of self-discipline.  The process was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  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.

4.  In reference to the applicant's SQI of "P" being added to his MOS, there is no doubt that he completed airborne training and he was awarded SQI "P."  However, the evidence of record shows the SQI of "P" was withdrawn by Special Orders 147-04, dated 1 August 1977.  Therefore, his MOS of 11E1O is correct as shown.

5.  Additionally, the evidence shows he was promoted to PV2/E-2 on 
8 September 1977.  There is no evidence and he has not provided any to show he was subsequently promoted to E-3.  Therefore, in the absence of documentation showing promotion to E-3 prior to his discharge on 13 October 1977, the presumption of regularity must be applied.

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)                                         AR20140020820





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ABCMR Record of Proceedings (cont)                                         AR20140020820



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