IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010205 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010205 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. IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010205 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. 2. The applicant states although he volunteered to enlist, he thought that through time and separation he could be granted an upgrade. The years have been very hard on him and he needs something good in his life. 3. The applicant does not provide any 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 10 July 1980 and held military occupational specialty 31M (Multi-Channel Communication Equipment Operator). He served in Germany from 13 February 1981 to around October 1982. 3. His records show his chain of command frequently counseled him for various infractions. These included: * poor attitude * lack of motivation * lack of self-discipline * lack of promotion potential * inability to adapt 4. On 11 January 1982 he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for assaulting an individual by striking him on the face with his fist. 5. On 4 August 1982 the applicant's immediate commander advised him of his intent to initiate separation action against him under the provisions of paragraph 5-31 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), under the Expeditious Discharge Program (EDP). The immediate commander recommended a General Discharge Certificate and cited the specific reasons as: * poor attitude, lack of motivation and lack of self-discipline * failure to demonstrate promotion potential * inability to adapt 6. On 5 August 1982 the applicant acknowledged notification of the proposed separation action. He subsequently consulted with legal counsel. He acknowledged that: * he had been advised of the basis for the contemplated separation action under the provisions of paragraph 5-31, AR 635-200 * he had been advised of the effect on future enlistments in the Army, the possible effects of a general discharge and of the procedures and rights that were available to him * he may apply to the Army Discharge Review Board (ADRB) or the ABCMR for a review of his characterization of service; however, the act of consideration does not imply an upgrade of his discharge * he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life 7. Subsequent to the applicant's acknowledgement and consult with counsel, his immediate commander initiated separation action against him under the EDP. The immediate commander stated that those measures attempting to correct his attitude had failed. He had a poor attitude and he lacked motivation and self-discipline. He was also unable to adapt socially and emotionally and he failed to demonstrate potential for promotion. 8. The separation authority reviewed the separation action and concluded that the applicant’s retention was impractical. He waived further rehabilitation requirements and approved the applicant's discharge under the provisions of AR 635-200, paragraph 5-31, and directed the issuance of Separation Program Designator (SPD) code JKJ and that his service be characterized as under honorable conditions with issuance of a General Discharge Certificate. On 29 October 1982, the applicant was discharged accordingly. 9. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 13 (unsatisfactory performance, SPD code JKJ) with a general discharge. He had completed a total of 2 years, 3 months, and 20 days of creditable active military service. He was awarded or authorized the: * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Army Service Ribbon * Overseas Service Ribbon 10. 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. REFERENCES: AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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. b. Chapter 5 provided for the EDP wherein 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 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 may be discharged under the EDP. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. A general discharge is a separation from the Army under honorable conditions if an individual's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13 established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record. d. Interim Change 4 to AR 635-200, dated 1 April 1982, eliminated the requirement to obtain the Soldier's consent for separation under the provisions of the EDP. It also incorporated the EDP into chapter 13 of AR 635-200. DISCUSSION: 1. The evidence of record shows the applicant's chain of command noticed he was displaying a poor attitude, lacked motivation and lacked self-discipline as well as failed to demonstrate promotion potential and an inability to adapt to the military environment. As a result, his chain of command initiated separation action against him. 2. His separation appears to have been accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights. The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service. The reason for discharge and the characterization of service were both proper and equitable. 3. His chain of command did not consider the quality of his service to have met the standards of acceptable conduct and performance of duty for Army personnel, or that it was otherwise so meritorious that any other characterization would be clearly inappropriate. As a result, he received a general discharge. 4. He has not provided evidence to show an error or an injustice occurred in his separation or a reason to upgrade his general discharge to a fully honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010205 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010205 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2