IN THE CASE OF:  	  

		BOARD DATE:  28 July 2015	  

		DOCKET NUMBER:  AR20140020854


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 (GD) to an honorable discharge (HD).

2.  The applicant states his record is neither in error nor unjust.  He is requesting a characterization upgrade for medical care in the interest of humanity.  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) and a copy of his GD Certificate.

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.  On 13 February 1976, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 64C (Motor Transport Operator).

3.  DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice) shows he received nonjudicial punishment (NJP) on:

* 12 August 1976, for being derelict in the performance of his duties
* 22 December 1976, for failure to obey an order from his superior commissioned officer and being absent without leave (AWOL)
* 17 December 1976, for failure to go to his appointed place of duty

4.  On 16 May 1977, the applicant's commander informed him he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program (EDP)), and that he was recommending he receive a GD Certificate.  His commander stated the reasons for the proposed action were the applicant's inability to adjust to military life and discipline, and his several acts of misconduct which resulted in NJP.  The commander informed the applicant he could expect to encounter substantial prejudice in civilian life as the result of issuance of a GD.  He was also informed of his right to consult with counsel, to decline the discharge, and to submit a statement in his own behalf.

5.  On 6 January 1977, he acknowledged notification of his proposed discharge and voluntarily consented to the discharge.  He elected not to submit statements in his own behalf, and he acknowledged he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps.  He further indicated he understood he could withdraw his voluntary consent to the discharge prior to the date of its approval by the discharge authority, and that if he declined to accept the discharge voluntarily, he could be subject to separation under other provisions of law or regulation.

6.  On 16 May 1977, the separation authority approved his discharge and directed he receive a GD Certificate.

7.  On 1 June 1977, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-37 with a GD Certificate.  His DD Form 214 shows he completed 1 year, 3 months and 7 days of total active service with 13 days of time lost.

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

	a.  Paragraph 5-37 of the version in effect at the time provided for the EDP.

		(1)  The EDP authorized discharge of individuals with at least 6 months but not more than 36 months of continuous active duty who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of one or more of the following:  (1)  poor attitude, (2)  lack of motivation, (3)  lack of self-discipline, (4)  inability to adapt socially or emotionally, (5)  failure to demonstrate promotion potential 

		(2)  Discharge under the EDP required an individual's voluntary consent.  A GD could not be issued unless the individual was given the opportunity to consult with appointed counsel.

	b.  Paragraph 3-7a provides that an HD 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 ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for benefits.  Each case is considered on its own merits.

2.  He voluntarily consented to discharge under the EDP.  The record shows all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He had the opportunity to make a statement voicing his concerns at the time of his separation processing and failed to do so.

3.  He received multiple NJP's, and the record shows he has time lost of 13 days.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  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)                                         AR20120002461



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ABCMR Record of Proceedings (cont)                                         AR20140020854



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