BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150016337 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 BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150016337 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. BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150016337 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, under honorable conditions discharge. 2. The applicant states he served in the U.S. Army several years ago. He acknowledges that he was involved in a little trouble. He states that he was found innocent of the charges against him at a court-martial. Therefore, his discharge should have been honorable. He adds that he served his country honorably. 3. The applicant provides no additional documentary 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. The applicant enlisted in the Regular Army on 2 August 1977 for a period of 3 years. a. Upon completion of training he was awarded military occupational specialty (MOS) 11B (Infantryman). b. He was assigned to Company C, 1st Battalion, 21st Infantry, Schofield Barracks, HI, on 29 December 1977. c. He was advanced to private (PV2)/pay grade E-2 on 2 February 1978. 3. Headquarters, 2nd Brigade, 25th Infantry Division, Schofield Barracks, HI, Special Court-Martial Order Number 6, dated 2 May 1978, shows the applicant was found not guilty of the charges and the specifications against him (related to two incidents that occurred on 30 January and 3 February 1978). 4. The applicant accepted nonjudicial punishment (NJP) for: * failing to report to his appointed place of duty (formation) on six different occasions (on 2, 13, 14, and 15 March and twice on 24 March 1978) * being disrespectful in language toward his superior noncommissioned officer on 9 April 1978 * failing to report to his appointed place of duty (formation) on three different occasions (twice on 1 May and once on 2 May 1978); he was reduced to private (E-1) 5. On 20 April 1978, the commander notified the applicant of his intent to initiate separation action to discharge him under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)). a. The reasons for his proposed action were the applicant's lack of ability to cope with the military and his inability to adapt socially and emotionally to military service. b. The commander advised the applicant of his rights, the separation procedures involved, and that he was recommending that he be furnished a General Discharge Certificate. 6. The applicant acknowledged notification of the commander's intent to discharge him under the EDP and the basis for the separation action. a. He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him. b. He waived his right to submit statements in his own behalf and he voluntarily consented to his discharge from the U.S. Army. c. The applicant placed his signature on the document. 7. The commander forwarded the separation action to the separation authority. 8. The separation authority approved the recommended separation action and directed the applicant be issued a General Discharge Certificate. 9. The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 5 June 1978 UP AR 635-200, paragraph 5-31, with separation program designator code "JGH" (EDP – failure to maintain acceptable standards for retention) and his service was characterized as under honorable conditions. He had completed 10 months and 4 days of net active service this period. 10. A review of the applicant's military personnel records failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. REFERENCES: AR 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army. a. Paragraph 5-31, in effect at the time, provided for the separation of Soldiers under the EDP who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and/or failure to demonstrate promotion potential. Members separated under the EDP could be awarded a character of service of honorable or general, under honorable conditions, as appropriate. 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: 1. The applicant's contention that his general, under honorable conditions discharge should be upgraded to a fully honorable discharge because he was acquitted by a special court-martial and he served his country honorably was carefully considered. 2. The applicant successfully completed training, he was awarded MOS 11B, and he was advanced to PV2 (E-2), which demonstrates his capacity for honorable service. a. At a special court-martial, the applicant was acquitted of the charges and specifications against him. b. The applicant then had a significant record of indiscipline subsequent to his acquittal by special court-marital. 3. The applicant's administrative discharge UP AR 635-200, paragraph 5-31, under the EDP for his inability to adapt socially and emotionally to military service was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 4. The evidence of record shows the applicant received NJP on three separate occasions for various acts of indiscipline and he was reduced to PV1 (E-1). In addition, he completed about 10 months of his 3-year active duty service obligation. His record of service during the relatively short period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel required for an 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) AR20150016337 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016337 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2