BOARD DATE: 28 January 2016 DOCKET NUMBER: AR20150007244 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 during his time in the military he became a drug addict which destroyed his military career. He has been clean and sober for over 30 years and he has been a productive member of society. 3. The applicant provides no additional evidence in support of his application. 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 16 October 1975, he enlisted in the Regular Army. 3. On 5 February 1976, he received nonjudicial punishment (NJP) for being absent without leave (AWOL) from 3 - 5 February 1976. 4. On 25 February 1976, he was assigned to Company C, 5th Battalion, 7th Cavalry at Fort Hood, TX. 5. On 17 March 1976, he received NJP for being AWOL from 23 February to 6 March 1976. 6. On 9 June 1976, the applicant's commander notified him that he was initiating action to discharge him from the Army under the provisions of chapter 5 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He was recommending the applicant receive a General Discharge Certificate. The reasons for the proposed action were the applicant's poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially, inability to adapt emotionally, and failure to demonstrate promotion potential. The commander stated he was initiating the action because of the applicant's: * inability to accept instructions and directions * clearly substandard performance * lack of cooperation with peers and superiors 7. His commander further advised him that if he received a general discharge, he could expect to encounter substantial prejudice in civilian life. The commander also advised the applicant of his right to: * consult with an officer of the Judge Advocate General's (JAG) Corps prior to completing his acknowledgements * submit a statement in his own behalf 8. The applicant was advised he had the right to decline this discharge, but if subsequent misconduct indicated that such action was warranted, he could be subjected to disciplinary or administrative separation procedures under other provisions of law or regulation. 9. The applicant acknowledged he was notified of the proposed discharge action and he voluntarily consented to the discharge. He indicated he desired to make a statement in his own behalf. However, there was no statement attached to his discharge processing package. 10. His counsel, a JAG officer, advised him of the basis for the contemplated separation with a General Discharge Certificate and its effect and the rights available to him. He appeared of sound mind, personally and knowingly made the choices indicated in his acknowledgment. 11. His commander recommended he be discharged and furnished a General Discharge Certificate. 12. The appropriate authority approved his discharge and directed he be furnished a General Discharge Certificate. 13. On 11 June 1976, he received NJP for: * Failure to obey a lawful order from a corporal * Wrongfully appropriating an M113A1 Armored Personnel C34 14. On 7 September 1976, he was discharged by reason of failure to maintain acceptable standards for retention (Expeditious Discharge Program). He completed 10 months and 9 days of net active service that was characterized as under honorable conditions. He had 14 days of time lost. 15. There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations. 16. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. Whenever there was doubt, it was to be resolved in favor of the individual. b. Paragraph 5-37 (Expeditious Discharge Program) provided for the discharge of enlisted personnel who demonstrated they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. The regulation provided that no individual would be discharged under this provision unless the individual voluntarily consented to the proposed discharge. Individuals discharged under this regulation were issued either an honorable or a general discharge. DISCUSSION AND CONCLUSIONS: 1. The evidence shows he was properly and equitably discharged in accordance with regulations in effect at the time. His commander notified him of the reasons and the type of discharge he was recommending. He voluntarily consented to the proposed discharge. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. 2. He understood if he was issued a general discharge under honorable conditions he could expect to encounter substantial prejudice in civilian life and he was provided the opportunity to consult with a JAG officer. The records contain no indication of procedural or other errors that would have jeopardized his rights. 3. The applicant contends be became a drug addict while in the Army and it destroyed his career. However, there is no mention of drugs in his military records. His NJPs were for AWOL, disobeying an order, and wrongful appropriation. He was discharged for failure to maintain acceptable standards for retention. 4. He received NJP on three occasions and he had 14 days of time lost. His lack of motivation and self-discipline, his inability to accept instructions and directions, and his lack of cooperation with peers and superiors show he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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) AR20150007244 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007244 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1