BOARD DATE: 27 February 2018 DOCKET NUMBER: AR20160001040 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. 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 BOARD DATE: 27 February 2018 DOCKET NUMBER: AR20160001040 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :x :x :x DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 27 February 2018 DOCKET NUMBER: AR20160001040 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 under honorable conditions to honorable. 2. The applicant states he was told he would receive an automatic upgrade of his discharge after 6 months. 3. The applicant provides a copy of his 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 13 September 1977 for a period of 3 years. 3. His records contain a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 14 December 1977, showing he accepted nonjudicial punishment (NJP) for being drunk and disorderly in his battalion area on or about 8 December 1977. 4. On 9 January 1978, he was counseled in writing for failing to follow a lawful order. His section chief noted he showed disrespect for authority and a negative attitude toward the Army. 5. On 17 January 1978, he was counseled in writing for dereliction of duty. The commander of relief noted he left his place of duty without authority and failed to pick up his weapon at the guard house and return it to the arms room. 6. On 30 January 1978, he was counseled in writing on his conduct and the proper handling of a weapon. The first sergeant noted he attempted to strike another Soldier with his weapon. He claimed the other Soldier kicked him. 7. On 6 February 1978, he was counseled in writing by a senior noncommissioned officer (NCO) for his attitude and general comments. 8. His records contain a DA Form 2627, dated 4 April 1978, showing he accepted NJP for communicating a threat to another Soldier on or about 26 February 1978. 9. On 13 September 1978, he was counseled in writing by a senior NCO for being absent from his place of duty on 11 September 1978 and failing to report to his appointed place of duty at the prescribed time. 10. On 18 September 1978, he was counseled in writing for promotion purposes. The section chief informed him of a flagging action due to his past duty performance. He was advised the flagging action was in the process of being removed because of his upgraded performance and he would be recommended for promotion after an unspecified period of time if his performance did not drop. 11. His records contain a DA Form 2627, dated 19 October 1978, showing he accepted NJP for disobeying an order from an NCO, using disrespectful language toward a superior NCO on or about 6 September 1978, and failing to go to his appointed place of duty at the prescribed time on two occasions on or about 2 October 1978. 12. On 1 November 1978, his duty status was changed from present for duty to confined by civil authorities. 13. On 6 November 1978, his duty status was changed from confined by civil authorities to present for duty. His unspecified charges were dropped. 14. On 29 November 1978, his commander recommended his discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program). His commander stated the applicant had shown himself to be incapable of adjusting to the lifestyle demanded of a Soldier in the U.S. Army. His duty performance and attitude had been clearly and consistently substandard. He had not demonstrated himself capable of accepting or carrying out orders or instructions, or of cooperating with peers or supervisors. Counseling had failed to effect a change in his attitude or behavior. 15. On 4 December 1978, his commander notified him in writing of his intent to initiate separation action against him for his inability to meet acceptable standards for continued military service under the provisions of Army Regulation  635-200, paragraph 5-31. His commander recommended issuance of a General Discharge Certificate. 16. On 8 December 1978, he acknowledged receipt of notification of the proposed separation. He elected not to submit statements in his own behalf. He acknowledged: a.  he had been advised of the basis for the contemplated separation action and he had the opportunity to consult with legal counsel, b.  he had been advised of the type of discharge he could receive and its effect on further enlistment, c.  he had been advised of the possible effects of this discharge and the procedures and rights available to him, d.  he understood he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge under honorable conditions, e.  he would be subject to separation under other provisions of law or regulation if he did not voluntarily accept the discharge and if his conduct warranted such in the future, and f. he understood he would not be permitted to apply for enlistment in the U.S. Army within 2 years from his date of discharge. 17. On 19 December 1978, his duty status was changed from present for duty to absent without leave (AWOL). 18. On 20 December 1978, his duty status was changed from AWOL to present for duty. 19. His records contain a DA Form 2627, dated 28 December 1978, showing he accepted NJP for communicating a threat to an NCO on or about 26 October 1978, using disrespectful language and communicating a threat to a superior NCO on or about 31 October 1978, and being absent from his place of duty on or about 1 November 1978. 20. On 3 January 1979, he was discharged. His DD Form 214 shows he completed 1 year, 3 months, and 14 days of creditable active military service and he had 7 days of lost time under the provisions of Title 10, U.S. Code, section 972, for the period 1 through 6 November 1978 and 19 December 1978. His service was characterized as under honorable conditions. 21. 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. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a.  Paragraph 5-31, in effect at the time, 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 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 Expeditious Discharge Program. 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.  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. c.  A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant contends he was told his discharge would automatically be upgraded after 6 months. 2. The U.S. Army does not now have nor has it ever had a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change to the character of discharge. Changes may be warranted if the Board determines the characterization of service or the reason for discharge, or both, was improper or inequitable. 3. The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by his numerous instances of NJP, counseling, and AWOL. Accordingly, his commander initiated separation action against him. 4. The evidence of record also shows he voluntarily consented to his discharge under the Expeditious Discharge Program. His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160001040 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001040 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2