IN THE CASE OF: BOARD DATE: 9 DECEMBER 2016 DOCKET NUMBER: AR20160001065 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 IN THE CASE OF: BOARD DATE: 9 DECEMBER 2016 DOCKET NUMBER: AR20160001065 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 her general discharge under honorable conditions be upgraded to an honorable discharge. 2. The applicant states, in effect, she believes the record to be unjust because she can only remember walking with a friend on post and she unintentionally failed to salute an officer. She has had major problems receiving the 5-point veteran's preference because of her DD Form 214 (Certificate of Release or Discharge from Active Duty). She has lost a post office job twice because the 5-point veteran's preference was taken from her. She recently found out she could have her service upgraded. 3. The applicant provides copies of her DD Form 214 with an effective date of 19 January 1981, an excerpt of her DA Form 2-1 (Personnel Qualification Record), and an endorsement to her separation orders that annotates her discharge date as 19 January 1981. 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 5 September 1979, she enlisted in the Regular Army. 3. The applicant's records contain a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) that shows the applicant received nonjudicial punishment (NJP) for failure to go at the time prescribed to her appointed place of duty on 14 May 1980. This document is signed by the applicant's commander; however, the date on which he signed is unclear and this document is not signed or dated by the applicant. 4. A DA form 4126-R (Bar to Reenlistment Certificate), dated 16 May 1980, shows her commander recommended she be barred from reenlistment. a. Block 10 (Record of Non-Judicial Punishment) indicates she received NJP on 15 May 1980 for failure to repair on 14 May 1980. b. Block 12 (Other Factual and Relevant Indicators or Untrainability or Unsuitability) shows the applicant failed to respond to repeated correction, lacked motivation, and had no promotion potential. She had been counseled and had missed formations on 9 April 1980, 29 April 1980, and on 12 May 1980. c. On 22 May 1980, the applicant completed Section II (Individual's Review) acknowledging she had been furnished a copy of the commanding officer's recommendation to bar her from further reenlistment and she had been counseled and advised of the basis for the action to bar her from further reenlistment. She indicated she did not desire to submit a statement on her own behalf. 5. On 28 May 1980, the bar to reenlistment was approved. 6. On 8 October 1980, the application received NJP for failure to go at the time prescribed to her appointed place of duty at 0730 on 22 September 1980. (The suspension of punishment imposed on 8 October was vacated on 11 December 1980.) 7. On 31 October 1980, the commander signed a DA Form 4187 (Personnel Action) stating the bar would remain in effect. 8. On 15 December 1980, the applicant's commander notified her he was initiating action to discharge her from the Army under the provisions of chapter 5 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel). He was recommending the applicant receive a General Discharge Certificate. a. The reasons for the proposed action were the applicant's failure to adapt to military life, master basic Soldier skills and lack of discipline, and demonstrate promotion potential b. The commander further advised that if she received a general discharge, she could expect to encounter substantial prejudice in civilian life. The commander also advised the applicant of her right to consult with an officer of the Judge Advocate General's (JAG) Corps prior to completing her acknowledgements and submit a statement in her own behalf. c. The applicant was advised she had the right to decline this discharge, but if subsequent misconduct indicated that such action was warranted, she could be subjected to disciplinary or administrative separation procedures under other provisions of law or regulation. 9. On 17 December 1980, the applicant acknowledged notification of the proposed discharge action and she voluntarily consented to the discharge. She indicated she did not submit a statement on her behalf. 10. On 23 December 1980, the appropriate authority approved her discharge and directed she be furnished a General Discharge Certificate. 11. On 19 January 1981, she was discharged by reason of failure to maintain acceptable standards for retention (Expeditious Discharge Program). She completed 1 year, 4 months, and 15 days of net active service characterized as under honorable conditions. 12. There is no indication she applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge within the ADRB's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-31 (Expeditious Discharge Program) provides for the discharge of enlisted personnel who demonstrated they cannot or will not meet acceptable standards required or 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 are issued either an honorable or a general discharge. b. Paragraph 1-13 provides: (1) An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment. Where a member has served faithfully and performed to the best of his or her ability and there is no derogatory information in their military record. (2) A general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The member may have had frequent NJP but not for serious infractions. The member may be a troublemaker, but conduct is not so bad as to require discharge under less than honorable conditions. DISCUSSION: 1. The evidence shows she was properly and equitably discharged in accordance with regulations in effect at the time. The commander notified her of the reasons for the recommended discharge and the type of discharge that was being recommended. She voluntarily consented to the proposed discharge. The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case. 2. She acknowledged she understood if she was issued a general discharge under honorable conditions she could expect to encounter substantial prejudice in civilian life and she was provided the opportunity to consult with a JAG officer. The available records contain no indication of procedural or other errors that would have jeopardized her rights. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160001065 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001065 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2