IN THE CASE OF: BOARD DATE: 24 November 2015 DOCKET NUMBER: AR20150004671 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: * he was discharged in 1979 because of some issues he had with Soldiers; he was told his discharge would be general but could be changed to honorable after 12 months if there were no incidents * he was told by his commander to stay in touch with the Department of Veterans Affairs within 30 days and sign in for the next 12 months * he went to the recruiting station in Rockingham, NC and completed the 12 months * he reported to the Reserve unit every month as instructed and for each visit he signed a document indicating he reported as told * he drove trucks for 29 years 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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's records show he enlisted in the Regular Army on 20 September 1978. He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 57H (Terminal Operations Coordinator). 3. Following completion of MOS training, he was reassigned to the 403rd Transportation Company at Fort Bragg, NC. His records also show he was frequently counseled by members of his chain of command for various infractions, including: * not understanding what was expected of him * displaying a constant feeling of persecution * not cleaning his equipment (weapon) * being absent from his place of duty * failing to follow instructions * poor duty performance * procrastination * difficulty with superiors 4. On 4 October 1979, the applicant's immediate commander advised him that he intended to initiate action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)) by reason of his inability to adjust to the military environment. He recommended a general discharge. 5. The applicant acknowledged notification of the proposed separation action and consulted with legal counsel. He was advised of the basis for the contemplated separation action under the provisions of paragraph 5-31 of Army Regulation 635-200, 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 acknowledged he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life. He consented to this discharge and declined making a statement in his own behalf. 6. Subsequent to this action, his immediate commander initiated separation action against him under the EDP. The immediate commander recommended a General Discharge Certificate. 7. The separation authority approved the discharge under the provisions of Army Regulation 635-200, paragraph 5-31 and directed the applicant be furnished a General Discharge Certificate. On 17 October 1979, the applicant was discharged accordingly. 8. The DD Form 214 he was issued at the time shows he was discharged under the provisions of paragraph 5-31 of Army Regulation 635-200 by reason of "EDP-failure to maintain acceptable standards for retention" with an under honorable conditions (general) discharge. He completed 1 year and 28 days of active service and he was not transferred to the U.S. Army Reserve Control Group (Reinforcement or Individual Ready Reserve (IRR)). 9. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 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. Chapter 5 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 may 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. 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 evidence of record shows the applicant displayed an inability to conform to military rules as evidenced by his record of negative counseling. Accordingly, his chain of command initiated separation action against him under the EDP. His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason for separation were appropriate considering all the facts of the case. 2. He was not transferred to the IRR and therefore, there was no statutory or regulatory requirement for him to report to a Reserve unit on a monthly basis as he contends. He also did not provide evidence to show he signed into a Reserve unit on a monthly basis or that he was counseled at the time of his separation that by signing into a Reserve unit, his discharge would be considered for an upgrade. 3. His overall record of service shows he displayed an inability to adjust to the regimen of military life or respond to counseling. Based on his overall record of indiscipline, his service did not meet the standards of acceptable conduct and performance for Army personnel. There is no evidence of procedural error in the processing of his separation thus there is insufficient evidence to upgrade his discharge to honorable. 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) AR20150004671 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004671 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1