IN THE CASE OF: BOARD DATE: 20 October 2015 DOCKET NUMBER: 20140019973 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests an upgrade of the applicant's general discharge to honorable. 2. Counsel states: a. The applicant's discharge should be upgraded based on unsuitability and/or being unsuitable for military service. b. The applicant received an inequitable character of service. He should have been given an honorable discharge. Under current standards, an honorable discharge is required for a service member who is discharged for personal abuse of drugs other than alcoholic beverages. c. The use of the commanding officer's report prejudiced the applicant and contained serious inaccuracies. d. The applicant was not given an opportunity to be rehabilitated and there were also inconsistencies and undisclosed information. e. There were also inconsistencies and undisclosed information as his unit did not follow the rules in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. f. He received insufficient counsel/representation. g. There was no psychological or psychiatric evaluation conducted. 3. Counsel references several Army Discharge Review Board cases and Federal court cases in his brief. 4. Counsel 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 13 August 1979 for a period of 3 years. He completed his training and was awarded military occupational specialty 13B (cannon crewman). 3. Between June 1980 and November 1980, nonjudicial punishment (NJP) was imposed against him on four occasions for: * failing to go at the time prescribed to his appointed place of duty * possessing marijuana * failing to go at the time prescribed to his appointed place of duty and being drunk on duty * violating a lawful general regulation by failing to have in his possession his Armed Forces Identification Card and liberty pass 4. In September 1980, a bar to reenlistment was imposed against him. 5. In December 1980, he was notified by his immediate commander that action was being initiated to discharge him from the Army under the provisions of Army Regulation 635-200, paragraph 5-31 (Expeditious Discharge Program (EDP)), with issuance of a General Discharge Certificate. The commander determined reassignment for rehabilitation was not warranted and cited the following reasons for the proposed separation: * his inability to adjust to military service * his unsatisfactory behavior both on and off duty * his passing regard for authority * he has proven to be unreliable and unsuitable for the Army 6. On 8 December 1980, he consulted with counsel and acknowledged notification of his proposed discharge from the Army. He voluntarily consented to separation and he elected not to submit a statement in his own behalf. He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge. 7. On 13 December 1980, the separation authority approved his separation action and directed the issuance of a General Discharge Certificate. 8. On 31 December 1980, he was discharged accordingly. He completed 1 year, 4 months, and 28 days of total active service. 9. There is no evidence showing he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 10. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13 provided that an honorable discharge was a separation with honor. Issuance of an Honorable Discharge Certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member had served faithfully and performed to the best of his ability and there was no derogatory information in his military records, he should be furnished an Honorable Discharge Certificate. Where there were infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). b. Paragraph 5-31 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 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 under this program unless he/she voluntarily consented to the proposed discharge. 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. There is no provision for conduct of a psychological or psychiatric evaluation prior to separation under this paragraph. c. Paragraph 5-31(g)(4) stated reassignment for rehabilitation would be considered, if warranted. d. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred and must have include the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. e. 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 separation of individuals for unsuitability whose records 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. DISCUSSION AND CONCLUSIONS: 1. Counsel states the applicant's discharge should be upgraded based on unsuitability and/or being unsuitable for military service. 2. He states an honorable discharge is required for a service member discharged for personal abuse of drugs other than alcoholic beverages under current standards. However, the applicant was not discharged for abusing drugs. 3. He contends the use of the commanding officer's report prejudiced him and contained serious inaccuracies in that his unit did not follow the rules in accordance with Army Regulation 635-200, chapter 10. However, he was not discharged under the provisions of Army Regulation 635-200, chapter 10. 4. The evidence of record supports his contention that the applicant was not given an opportunity to be rehabilitated. His unit commander, however, determined reassignment for rehabilitation was not warranted. The commander's determination in this regard is consistent with the regulatory guidance of Army Regulation 635-200, paragraph 5-31(g)(4). 5. Although he contends the applicant received insufficient counsel/ representation, the evidence shows he consulted with counsel on 8 December 1980. Counsel also suggests the applicant was deprived of a constitutionally-based right to the assistance of counsel during the several times he received NJP. Counsel's basis for this assertion is that a military NJP proceeding is a "criminal prosecution." It is well settled that NJP is not a criminal prosecution to which any Sixth Amendment right to counsel attaches. Consequently, any asserted right to counsel based on Sixth Amendment concepts or jurisprudence is inapplicable to the applicant's case. Furthermore, the evidence of record indicates that each time the applicant received NJP, he was advised of his right to consult with a lawyer before making his decision to accept NJP or to demand trial by court-martial. Counsel has therefore failed to provide sufficient evidence demonstrating that inadequate or ineffective assistance of counsel caused an error or injustice that warrants correction. 6. Counsel contends there was no psychological or psychiatric evaluation conducted. However, the governing regulation does not require a psychological or psychiatric evaluation prior to discharge under the EDP. 7. The applicant's record of service included four NJPs and a bar to reenlistment. As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge. 8. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so. In addition, he voluntarily consented to his discharge. 9. The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case. 10. In view of the foregoing evidence, there is no basis for granting the requested relief. 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) AR20140019973 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140019973 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1