IN THE CASE OF BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150012925 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 IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150012925 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. IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150012925 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 under honorable conditions (general) discharge to an honorable discharge. 2. The applicant defers his statement to his representative. 3. The applicant provides his DD Form 214 (Report of Separation from Active Duty). REPRESENTATIVE'S STATEMENT: The applicant's representative states the applicant needs to use United Services Automobile Association (USAA) insurance for his automobile; he has all other benefits. He has worked hard in turning things around and is doing really good. He is enrolled at a local college and seems to have made a big change in his life. 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 1 July 1976 and he held military occupational specialty 63G (Fuel/Electric System Repairer). On 1 July 1977, he was promoted to the rank/grade of private (PV2)/E-2. On 13 January 1977, he was assigned to Company D, 703rd Maintenance Battalion, Germany. 3. He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on: * 28 November 1977, for absenting himself from his place of duty without proper authority * 29 December 1977, for failing to report to his place of duty without proper authority 4. On 7 March 1978, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 5 -Expeditious Discharge Program (EDP). His commander stated: a. The reasons for the proposed actions were his poor attitude, lack of motivation, inability to adapt socially or emotionally to the Army, and failure to demonstrate promotion potential. In addition, he exhibited a quitter attitude, hostility toward the Army, an inability to accept instructions and directions, clearly substandard performance, and a lack of cooperation with his peers and superiors. He was recommending the issuance of a General Discharge Certificate. b. He had the right to decline the discharge. If he declined the discharge and his subsequent conduct indicated such action was warranted, he may be subject to disciplinary or administrative separation procedures under applicable regulations. He had the right to submit a statement in his own behalf and was to complete the attached endorsement within 2 duty days. 5. The applicant's available record is void of the endorsement that would show he acknowledged receipt of the notification of his proposed discharge action. However, it appears he acknowledged receipt of the proposed discharge and voluntarily consented to the discharge. 6. His senior commander subsequently recommended approval of the separation action with the issuance of a General Discharge Certificate. 7. On 10 March 1978, the separation authority approved the separation action and directed the issuance of a General Discharge Certificate. On 11 April 1978, he was discharged accordingly in the rank of PV2. 8. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, by reason of failure to meet acceptable standards for retention (separation program designator (SPD) JGH), with an under honorable conditions (general) characterization of service. He completed 1 year, 9 months, and 11 days of net active service. 9. There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200, chapter 5, then in effect 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 (emphasis added). Issuance of a General Discharge Certificate was normally considered appropriate. 2. Army Regulation 635-200, paragraph 3-7a, states 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 evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on two occasions for leaving his place of duty without authority and failure to report. Accordingly, his commander initiated separation action against him. 2. In the absence of evidence to the contrary, it is presumed his separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights and that he voluntarily consented to his discharge. The type of discharge directed and the reason for separation were appropriate considering all the available facts of the case. 3. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. Although his post-service conduct may be noteworthy, it does not negate the fact that he demonstrated substandard behavior during his active duty service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012925 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012925 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2