IN THE CASE OF: BOARD DATE: 15 December 2015 DOCKET NUMBER: AR20150005209 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 under honorable conditions be upgraded to an honorable discharge. 2. The applicant states he overreacted when he was assaulted by his chain of command. This resulted in his general discharge under honorable conditions. He further states he needs his discharge upgraded in order to qualify for education grants. After his service, he struggled with drugs and alcohol; however, he has been sober for over 15 years and he continues to live, work, and give back to his community. He is a board member for a non-profit agency that mentors and works with homeless veterans to gain housing and recovery through various support groups. 3. The applicant provides nine letters in support of his application to the Board. 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 16 August 1979. He completed training and was awarded military occupational specialty 19E (M48-M60A1/A3 Armor Crewman). 3. His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 14 August 1980, for willfully disobeying a lawful order from a senior noncommissioned officer on 7 August 1980. 4. Summary Court-Martial Order Number 16, issued by Headquarters, 1st Battalion, 8th Cavalry Regiment, 1st Cavalry Division, Fort Hood, Texas on 29 June 1981, shows he was found guilty of violating four specifications of Article 91 and one specification of Article 134 of the UCMJ. Specifically, on 17 June 1981, the applicant was found guilty of two specifications of willfully disobeying a lawful order from a superior noncommissioned officer and two specifications of using disrespectful language toward a superior noncommissioned officer. He was also found guilty of one specification of wrongfully communicating a threat to injure to a superior noncommissioned officer. The applicant was sentenced to a reduction in grade to private/E-1, forfeiture of $334.00, and restriction for 60 days. The sentence was adjudged on 29 June 1981, and further approved the same day. 5. His record contains a locally approved DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated 17 July 1981. It is noted the applicant's conduct and efficiency were deemed unsatisfactory. He previously received NJP for failure to repair on or about 28 February 1980. He was counseled by his commander for nonpayment of a loan that was later repaid by the applicant. He received a letter of reprimand on 28 August 1980 for taking his vehicle from a service station without paying the bill. The applicant subsequently paid the bill three months late and on 25 June 1981, he received a statement of counseling for failing to make formation. 6. On 22 July 1981, he was notified by his immediate commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)). As the reason for his proposed action, his immediate commander cited his poor attitude, lack of motivation, lack of self-discipline, inability to accept instructions and direction, and lack of cooperation with his peers and superiors. 7. The applicant subsequently acknowledged notification of his proposed separation from the Army. He indicated his voluntary consent to the separation action and declined to submit statements in his own behalf. He acknowledged he understood if his service was characterized as under honorable conditions, he could expect to encounter substantial prejudice in civilian life. Lastly, he acknowledged he had the opportunity to consult with an officer of the Judge Advocate General's Corps; however, it is unclear if he elected to do so. 8. On 14 August 1981, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 5-31h(2), without a subsequent transfer to the Individual Ready Reserve, and directed he receive an under honorable conditions (general) characterization of service. 9. On 17 August 1981, he was discharged under honorable conditions, under the provisions of Army Regulation 635-200, paragraph 5-31h(2). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years and 2 days of net active service. His DD Form 214 further shows in: * Item 23 (Type of Separation), he was discharged * Item 24 (Character of Service), he was issued an under honorable conditions (general) characterization of service * Item 25 (Separation Authority), he was released from active duty under the provisions of Army Regulation 635-200, paragraph 5-31h(2) * Item 28 (Narrative Reason for Separation), he was released from active duty for failure to maintain acceptable standards for retention 10. The applicant's available military records are void of any evidence and he provides insufficient evidence to support his contention that he was assaulted by his chain of command, which ultimately resulted in his discharge under honorable conditions. 11. The applicant provides several letters in support of his application to the Board, which attest to his post-service involvement with veterans' organizations and his conduct throughout his treatment while maintaining his sobriety the past 15 years. 12. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board’s 15-year statute of limitations. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge or relief from active duty 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. b. Paragraph 3-7b provides that an under honorable conditions (general) discharge or relief from active duty is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge or honorable relief from active duty. c. Chapter 5 of the version in effect at the time 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, could be discharged or released from active duty 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 or released from active duty under this program unless he/she voluntarily consented to the proposed separation. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for an upgrade of his under honorable conditions (general) characterization of service was carefully considered. 2. The applicant appears to contend his acceptance of NJP was a singular event, an error in judgment that did not represent a pattern because he overreacted when he was assaulted by his chain of command. However, the applicant's available military records are void of any evidence and he provides insufficient evidence to support his contention that he was assaulted by his chain of command which ultimately resulted in his discharge under honorable conditions. 3. The evidence of record shows a history of unsatisfactory performance and behavior. His immediate commander cited the applicant's poor attitude, lack of motivation, lack of self-discipline, inability to accept instructions and direction, and lack of cooperation with his peers and superiors to initiate separation proceedings on the applicant. 4. His record of service shows he did not possess or demonstrate the traits and qualities expected of a Soldier. His conduct and efficiency were judged to be below acceptable standards. His service clearly did not meet the standards of acceptable conduct or performance of duty for Army personnel. 5. Ultimately, the applicant voluntarily consented to be discharged under the EDP. His discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. Considering all the facts of the case, the type of discharge directed and the reason for separation were appropriate. 6. In addition, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for veterans benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. The granting of veteran's benefits is not within the purview of the ABCMR. Therefore, any questions regarding eligibility for benefits should be addressed to the Department of Veterans Affairs. 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) AR20150005209 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005209 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1