IN THE CASE OF: BOARD DATE: 21 January 2016 DOCKET NUMBER: AR20150007761 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 to a fully honorable discharge. 2. The applicant states there is no error. He just wants an upgrade. 3. The applicant provides a DD Form 214 (Report of Separation 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 enlisted in the Regular Army on 25 July 1972 and held an infantry specialty. 3. On 8 November 1972, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his appointed place of duty. 4. On 24 November 1972, he again accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave from 22 to 24 November 1972. 5. He served in Germany from 15 February 1973 to 4 January 1974. While there, he accepted NJP under the provisions of Article 15 of the UCMJ for operating a vehicle without a valid operator's permit and without proper registration. 6. The applicant’s records contain a history of negative counseling by members of his chain of command for various infractions including being late to work, substandard appearance, failing equipment inspection, and absence from work. 7. On 1 November 1973, the applicant’s immediate commander notified the applicant that he intended to recommend his discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program (EDP)). He recommended a general discharge and cited the following specific reasons: * inability to adapt to the demands of military life * an attitude of apathy toward duties and personal responsibility * unreliability except under immediate and constant supervision * making false statements and misrepresentations to his chain of command * despite frequent counseling, failed to correct his attitude 8. On 1 November 1973, the applicant acknowledged notification of his proposed discharge from the Army. He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army; the effect on future enlistment in the Army; the possible effects of a general discharge; and of the procedures and rights that were available to him. * he voluntarily consented to this discharge * he acknowledged that he understood if he were issued a general discharge he could expect to encounter substantial prejudice in civilian life * he elected to submit a statement in his own behalf 9. In his statement, the applicant requested an honorable discharge and indicated he had difficulty with the English language. 10. On 2 and 27 November 1973, his intermediate and senior commanders recommended the applicant be discharged with a General Discharge Certificate. The intermediate commander opined: * the applicant is an apathetic Soldier; despite counseling by the chaplain and chain of command he demonstrated a lack of concern for his unit and his duties * he is obsessed with his personal, family, and religious affairs; he is unreliable and nonconforming; this stems from his idealistic lifestyle and stubborn independence * he uses his religious belief to his convenience to not comply with military standards; when told to shave, he claims it is part of his religion * he has been involved with several other Soldiers over borrowed money and comic books 11. On 10 December 1973, subsequent to a legal review for legal sufficiency, the separation authority approved the applicant's discharge under the provisions of the Expeditious Discharge Program by reason of failure to meet acceptable standards for continued military service and directed that he receive a General Discharge Certificate. On 7 January 1974, the applicant was discharged accordingly. The DD Form 214 he was issued confirms he completed 1 year, 5 months, and 13 days of creditable active military service. 12. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 13. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. The pertinent paragraph in 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. 14. Army Regulation 635-200, 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 demonstrated that he could not or would not meet acceptable standards required of enlisted personnel because of his inability to meet acceptable standards for continued military service. Accordingly, his immediate commander initiated separation action against him. More importantly is the fact that he voluntarily consented to his discharge. 2. His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reason for separation therefore were appropriate considering all the facts of the case. 3. Based on his overall record, the applicant's service does not meet the standards of acceptable conduct of duty for Army personnel. The applicant has not shown error, injustice, or inequity for the relief he requests. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ 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. _______ _ _______ ___ 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) AR20150007761 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007761 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1