BOARD DATE: 8 December 2015 DOCKET NUMBER: AR20150005711 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 under honorable conditions to honorable. 2. The applicant states he would like his DD Form 214 (Report of Separation from Active Duty) to reflect an honorable discharge rather than a general discharge under honorable conditions. 3. The applicant provides no additional evidence. 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 8 August 1973. 3. On 30 September 1975, his immediate commander notified him of his intent to initiate action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph  5-37 (Expeditious Discharge Program (EDP)). The commander stated the reasons for this action were the applicant's attitude, motivation, duty performance, and appearance, which deteriorated to an unsatisfactory level. The commander further stated the applicant was unable to accept instructions in the daily performance of his duties and received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on 4 November 1974 and 8 May 1975 for absenting himself from his place of duty and failing to obey a lawful order. He received 15 written counseling statements and numerous verbal counselings in the prior year and a conscientious effort was made toward his rehabilitation without success. The commander informed him that he intended to recommend issuance of a General Discharge Certificate. He informed him that the issuance of a less than honorable discharge could preclude his eligibility for many or all veterans' benefits and he could expect to encounter substantial prejudice in civilian life. He also advised him of his right to consult with legal counsel, to submit a statement in his own behalf, to decline the discharge, or to waive any of the aforementioned rights. 4. The applicant acknowledged receipt of the commander's notification of intent to separate him under the provisions of the EDP and voluntarily consented to the separation action. He was provided an opportunity to consult with legal counsel and was advised of the basis for the contemplated separation from the Army under the provisions of chapter 5 of Army Regulation 635-200, the effect on his future enlistment eligibility in the Army, the possible effects of a general discharge, and the procedures and rights available to him. He acknowledged he understood that if he were issued a General Discharge Certificate, he could expect to encounter substantial prejudice in civilian life. He declined to submit a statement in his own behalf. 5. On 7 August 1975, the separation authority approved his discharge and directed the issuance of a General Discharge Certificate. 6. On 18 August 1975, he was discharged under honorable conditions. His DD Form 214 shows he completed 2 years and 11 days of total active service. 7. On 3 April 1981, he appealed to the Army Discharge Review Board for an upgrade of his discharge, stating the characterization was too severe for the offense since he had only one NJP during his entire military career. The Army Discharge Review Board denied his request on 26 January 1982, finding his discharge to be both proper and equitable. 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 5, in effect at the time, provided for the separation of enlisted personnel for the convenience of the government. Paragraph 5-37 provided that Soldiers who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated 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, would be discharged under the EDP. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. No Soldier would be discharged under this program unless he/she voluntarily consented to the proposed discharge. 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate. DISCUSSION AND CONCLUSIONS: 1. The applicant’s request for an upgrade of his general discharge under honorable conditions to honorable was carefully considered. 2. His records reveal a disciplinary history that includes the acceptance of NJP on two occasions for absenting himself from his place of duty and failing to obey a lawful order. 3. The applicant’s discharge packet shows he voluntarily consented to discharge under the EDP for a lack of motivation, poor duty performance, and inability to respond to rehabilitative efforts. He was afforded the opportunity to consult with legal counsel. His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 4. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. His discharge accurately reflects his overall record of service. 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) AR20150005711 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005711 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1