IN THE CASE OF:  

		BOARD DATE:  20 August 2015

		DOCKET NUMBER:  AR20150001134


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 correction of his military records by upgrading his general discharge to an honorable discharge.

2.  The applicant states he had trouble with his return flight after attending his grandfather’s funeral.  He arrived back at his unit 24 hours late.  He was facing nonjudicial punishment (NJP).  He was still recovering from the loss of his grandfather and accepted a discharge.

3.  The applicant provides copies of his:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter of Commendation, Fort McPherson, Georgia, dated 3 July 1980 with a 1st Indorsement

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 21 November 1979.  He completed his initial training and was awarded military occupational specialty 95B (Military Police).

3.  On 19 March 1980, the applicant was assigned for duty as a military policeman at Fort McPherson, Georgia.

4.  On 1 September 1980, the applicant was advanced to the rank of private first class, pay grade E-3.

5.  On 4 June 1981, the applicant departed Fort McPherson for duty in the Federal Republic of Germany.  He was subsequently assigned as a security guard with Battery B, 2nd Battalion, 56th Air Defense Artillery.

6.  Records show the applicant received the following performance counseling on:

* 24 September 1981, for sleeping while on duty at Post 3A
* 28 September 1981, for disobeying orders and being disrespectful in language toward a noncommissioned officer (NCO)
* 29 September 1981, for having a poor attitude
* 21 October 1981, for being disrespectful toward an NCO 
* 5 November 1981, for not getting up in the morning and performing properly by making his bed and keeping his area clean
* 6 November 1981, for a dishonored check in the amount of $20.92
* 10 November 1981, for failing to get out of bed and for missing evening bed check
* 13 November 1981, for dishonored checks in the amount of $20.06 and $21.49
* 20 November 1981, for failing to obey orders and being disrespectful toward an NCO
* 25 November 1981, for failing to make bed check and for not getting out of bed in the morning
* 29 December 1981, for failure to take corrective action concerning his bad checks
* 30 December 1981, for failing to inform his NCO of the status of his medical appointments and failing to go to work as required
* 4 January 1982, for failing to get up on time, missing morning formation, and refusing to perform his assigned details
* 6 January 1982, his platoon leader recommended NJP for applicant’s failure to appear at morning formation and to appear throughout the day
* 17 January 1982, for failing to get out of bed and for his poor attitude towards the unit, his job, and the Army
* 20 January 1982, for failing to go to work after seeing the chaplain and for failing to polish his boots and low quarters

7.  Records indicate the applicant was reduced to private, pay grade E-2 on 
29 April 1982.  His records do not contain any documentation showing whether this reduction was for misconduct or for inefficiency.

8.  On 18 May 1982, the commander notified the applicant of his intent to separate him under the provisions of Army Regulation 635-200 (Personnel Separations) paragraph 5-31 (Expeditious Discharge Program (EDP)) due to his lack of self-discipline, motivation, poor attitude, and promotion potential.  The applicant acknowledged this notification.  He elected not to submit a statement in his own behalf.  He indicated he understood that if he was issued a General Discharge Certificate he could expect to encounter substantial prejudice in civilian life.  He also acknowledged that he was provided the opportunity to consult with an officer of the Judge Advocate General's Corps.

9.  On 20 May 1982, the separation authority approved the applicant's recommendation for separation under the provisions of Army Regulation
635-200, paragraph 5-31, and directed the applicant be furnished a DD Form 257A (General Discharge Certificate).

10.  Accordingly, on 28 May 1982, the applicant was discharged.  He completed 2 years, 6 months, and 8 days of creditable active duty service.

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

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

	a.  Paragraph 5-31 (EDP) provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  This program provided that members who had demonstrated they could not or would not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated.  A general discharge was normally considered appropriate.

		(1)  Poor attitude

		(2)  Lack of motivation

		(3)  Lack of self-discipline

		(4)  Inability to adapt socially or emotionally

		(5)  Failing to demonstrate promotion potential

	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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge because he had trouble with his return flight after attending his grandfather’s funeral.  He arrived at his unit 24 hours late.

2.  The record shows the applicant was counseled on numerous occasions over a period of several months for his attitude, being disrespect, and for failing to report to formation or work numerous times.  He was also reduced in rank prior to his discharge.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

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

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20120008748



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ABCMR Record of Proceedings (cont)                                         AR20150001134



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