IN THE CASE OF: BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150016519 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: 4 April 2017 DOCKET NUMBER: AR20150016519 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: 4 April 2017 DOCKET NUMBER: AR20150016519 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 under honorable conditions (general) discharge be upgraded to an honorable discharge. 2. The applicant states, in effect, that he was advised he would be authorized an honorable discharge when he applied, in accordance with Army regulations. 3. The applicant provides no additional evidence in support of his application. 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 9 January 1980. He completed his initial entry training and was awarded military occupational specialty (MOS) 67N (Utility Helicopter Repairer). The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3. 3. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on the following occasions: a. on 31 October 1980, at Saber Army Heliport, Fort Campbell, KY, for being found sleeping while on post as a guard, on or about 20 October 1980, with punishment of forfeiture of pay for one month and extra duty; and b. on 6 April 1982, at Robinson Barracks, for committing an assault against a fellow enlisted Soldier by throwing him to the ground and unlawfully carrying a concealed weapon, to wit: a lock blade knife, on or about 3 April 1982, with punishment of reduction in grade from PFC to private (PVT)/E-1 and restriction to barracks. 4. The applicant's record shows he was frequently counseled by his chain of command for various infractions, including numerous failures to perform his duties, missing formations, and absenting himself from duty. 5. The applicant was informed by his commander on 12 May 1982 that action was being initiated to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31H(1), under the Expeditious Discharge Program (EDP) with a General Discharge Certificate. a. His commander cited the reasons for the proposed separation action as the applicant's total disregard to rules and regulations, poor attitude, apathy, and failure to respond to discipline, as documented by his two Article 15s and numerous counseling statements. The continued counseling by unit noncommissioned officers has produced negative results. b. The commander informed him that he had the right to decline this type of discharge, in which he may be processed for separation under other provisions of law or regulation. 6. The applicant acknowledged notification of his proposed separation from the Army. He indicated he voluntarily consented to the separation and elected to submit a statement in his own behalf. 7. The applicant's statement acknowledged his mistakes and his understanding of the reason for his pending expeditious discharge; however, he thought the type of discharge might hinder him from pursing his career in civilian aircraft mechanics and asked the type of discharge be reconsidered. 8. The separation authority approved the applicant's separation on 20 May 1982, under the EDP, and directed he be issued a General Discharge Certificate. The separation authority further directed the applicant's transfer to the Individual Ready Reserve to complete his military service obligation. 9. The applicant was released from active duty on 7 June 1982 and assigned to the U.S. Army Reserve Control Group (Annual Training) the following day. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31H (1), under the EDP, for failure to maintain acceptable standards for retention. His DD Form 214 confirms his service was characterized as under honorable (general) conditions. 10. 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. REFERENCES: Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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. b. Chapter 5 provided for the EDP. 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 could be discharged under the EDP. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. A general discharge was a separation from the Army under honorable conditions if an individual's military record was not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant contends he was advised that he would be authorized an honorable discharge when he applied, in accordance with Army regulations. However, the U.S. Army does not have, nor has it ever had, a policy that allows for the automatic upgrade of discharges based on the passage of time. Each case is decided on its own merits when an applicant requests a change. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. 2. The applicant's record shows he received two Article 15s for violating articles of the UCMJ; specifically, for sleeping on guard duty and for committing an assault against a fellow Soldier while carrying an unlawfully concealed weapon. He was counseled on numerous occasions for his disregard to rules and regulations, his poor attitude, and his failure to respond to discipline. As a result, his immediate commander initiated separation action against him. 3. The applicant was notified of the reasons for his recommended separation and he signed a statement acknowledging he understood the prejudices associated with his discharge. He voluntarily consented to the separation in accordance with the applicable regulation at the time. 4. The applicant's administrative separation was accomplished in compliance with applicable regulations then in effect with no indication of procedural errors that would have jeopardized his rights. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016519 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016519 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2