IN THE CASE OF: BOARD DATE: 24 November 2015 DOCKET NUMBER: AR20150004933 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 be upgraded to an honorable discharge. 2. The applicant states his guarantee to Europe was breached and an early discharge was in compensation or obligate for additional time in order to get his guaranteed assignment. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the U.S.), dated 2 March 2015. 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 6 October 1976, he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program(DEP). Annex A (Statements for Enlistment, DEP, dated 6 October 1976, to his DD Form 4 (Enlistment or Reenlistment Agreement - Armed Forces of the United States) indicates he was enlisting for military occupational specialty (MOS) 31B Field Communications-Electric Equipment Repairman). 3. On 15 October 1976, he enlisted in the Regular Army for 3 years. Annex B (Statements for Enlistment Part VI - United States Army Training of Choice Enlistment Option) to his DD Form 4 indicates he enlisted for MOS 31B. 4. There is no indication on either Annex A or Annex B that he was enlisting for an assignment in Europe. 5. He completed basic combat and advanced individual training (AIT) and was awarded MOS 31B. 6. On 15 December 1976, he was assigned to the U.S. Army Field Artillery Training Center at Fort Sill, OK for AIT. 7. On 18 February 1977, he received nonjudicial punishment (NJP) for wrongfully possessing 2.3 grams, more or less, of marijuana. On 17 April 1977, he was promoted to private (PV2)/pay grade E-2. 8. On 10 June 1977, he was assigned to the Headquarters and Headquarters Company, 2nd Battalion, 70th Armor at Fort Stewart, GA. 9. He received NJP on: * 22 September 1977 for being absent without leave (AWOL) from 2 to 11 September 1977 * 8 November 1977 for being AWOL from 31 October to 4 November 1977, punishment included reduction to private/pay grade E-1 10. On 23 November 1977, his commander notified him he was initiating action to discharge him from the Army under the provisions of Paragraph 5-37 (Expeditious Discharge Program) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). The commander's reason for the proposed action was the applicant's lack of promotion potential and his poor attitude of individual responsibility. 11. 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. 12. He was further advised 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 Corps prior to completing his acknowledgements * submit a statement in his own behalf 13. The applicant acknowledged he was notified of the proposed discharge action and voluntarily consented to the discharge. He did not submit statements in his own behalf. 14. His commander submitted an additional statement to the letter of notification. a. The applicant had failed to demonstrate any promotion potential and had displayed a hostility toward the Army and his unit leaders. b. Upon his return from a 9-day AWOL he was not the least bit contrite but rather he was apathetic. c. The applicant was supposedly enrolled in a high school completion program, but he had missed 9 school days in the month of August. When he was confronted with this information he had no excuse and he was withdrawn from the program. d. In an effort to improve his attitude and job performance the applicant was temporarily assigned to the battalion communications platoon from 19 September until 21 October. He was returned to his parent company because he was not dependable and required constant supervision. e. Upon his return his attitude did not improve and he continued to disregard his instructions and flaunt authority. He again went AWOL for 7 days and upon his return he received NJP. He showed no indication of any improvement. 15. On 14 December 1977, his discharge was approved by the appropriate authority. 16. On 22 December 1977, he was discharged under the provisions of the Expeditious Discharge Program. He completed 1 year, 1 month, and 22 days of net active service that was characterized as under honorable conditions. He had 16 days of time lost. 17. 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. 18. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. a. 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 b. . 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. DISCUSSION AND CONCUSIONS: 1. The applicant contends his guarantee for Europe was breached. However, Annexes A and B only guaranteed him training in MOS 31B, which he received after completing AIT. There is no evidence he was guaranteed any specific assignment when he enlisted. 2. He had two periods of AWOL totaling 16 days. During his service the highest grade he attained was PV2. His commander stated he had a lack of promotion potential and he displayed a hostility toward the Army and his unit leaders. He was given every opportunity to improve including enrollment in a high school completion program and a temporary transfer to the battalion communications platoon. However, he continued to flaunt authority and showed no attempts to improve his attitude. He did not meet the standards of acceptable conduct and performance of duty for Army personnel. 3. 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. The records contain no indication of procedural or other errors that would have jeopardized his rights. 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) AR20150004933 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004933 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1