BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160001516 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 BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160001516 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. BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160001516 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 an honorable discharge. 2. The applicant states he was not counseled regarding the type of discharge he would receive. He feels this was the only blemish in his record. He has lived his life in an honorable manner. He raised a family and has a college degree. He would like the characterization of his service corrected. 3. The applicant provides no additional evidence. 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 12 May 1975 and held military occupational specialty 82C (Artillery Surveyor). 3. He served in Germany from 11 October 1975 to on or about 18 June 1976. While there, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on/for: * 26 February 1976 – failing to obey a lawful order issued by his commanding officer to be at formation * 7 April 1976 – failing to obey a lawful order issued by his commanding officer to be up and out of bed, failing to report to his daily clean-up details, and failing to obey a lawful order issued by his commanding officer to be at formation * 14 May 1976 – failing to obey a lawful order issued by his commanding officer to not consume alcoholic beverages while on duty 4. On 17 May 1976, the applicant underwent a mental status evaluation. The examining official determined the applicant was mentally responsible, able to distinguish right from wrong and able to adhere to the right. He did not have a significant mental illness. He had the mental capacity to understand and participate in board proceedings and he met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). 5. On 19 May 1976, the applicant's immediate commander initiated a Bar to Enlistment/Reenlistment Certificate against the applicant. The commander noted: * the applicant had not developed into a quality Soldier * the applicant had a poor attitude toward his duty and his supervisors * the applicant had not demonstrated any motivation to improve himself * the applicant could not adapt socially or emotionally to the standards of the U.S. Army * the applicant’s military discipline history * all rehabilitation efforts proved fruitless 6. On 19 May 1976, 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: * since his assignment to the unit, the applicant had not developed into a quality Soldier, acceptable in the baseline force * he had a poor attitude toward his duty and his supervisors * he had not demonstrated any motivation to improve himself * he had not demonstrated the discipline required of a Soldier in the U.S. Army * he could not adapt himself socially or emotionally to the U.S. Army's environment * all efforts to rehabilitate him by the commander or other members of the chain of command did not result in any improvement to his duty performance 7. On 19 May 1976, the applicant acknowledged receipt of the notification of his proposed discharge from the Army and 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 also acknowledged he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps. He elected not to submit a statement in his own behalf. 8. On 21 May 1976, the immediate commander initiated separation action against him under the provisions of paragraph 5-37 of Army Regulation 635-200 citing his failure to adjust, disrespect toward superiors, and failure to respond to counseling. 9. On 26 May 1976, the separation authority approved the applicant's discharge under the provisions of the EDP in accordance with paragraph 5-37 of Army Regulation 635-200 and directed that he receive a General Discharge Certificate. On 18 June 1976, the applicant was discharged accordingly. 10. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged with an under honorable conditions characterization of service and received a General Discharge Certificate. He completed 1 year, 1 month, and 7 days of creditable active military service. He was awarded or authorized: * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Grenade Bar 11. 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. REFERENCE: Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. Chapter 3 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 conduct standards required of enlisted personnel because of his failure to adjust, disrespect toward superiors, and failure to respond to counseling. Accordingly, his immediate commander initiated separation action against him. 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 were appropriate considering all the facts of the case. He voluntarily consented to his discharge. 3. The evidence of record shows he acknowledged receipt of the notification of his proposed discharge from the Army and he voluntarily consented to this discharge. He also acknowledged he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps. He elected not to submit a statement in his own behalf. 4. Based on his overall record, the separation authority determined the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel and did not rise to the level required for an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001516 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001516 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2