IN THE CASE OF: BOARD DATE: 12 June 2018 DOCKET NUMBER: AR20160008197 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: 12 June 2018 DOCKET NUMBER: AR20160008197 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 a fully honorable discharge. 2. The applicant states, in effect, his discharge should be upgraded because he has the support of several individuals. 3. The applicant provides three letters of support. 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 23 July 1974 and held an infantry specialty. He served in Germany from 12 January 1975 to on or about 24 April 1975. 3. On 18 March 1975, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order from his superior commissioned officer. His punishment consisted of a reduction to E-1, forfeiture of pay, and extra duty. 3. On 8 April 1975, 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: a. The applicant had demonstrated apathy toward military service and disrespect for superior commissioned and non-commissioned officers. He had been repeatedly counseled concerning his attitudes toward military service yet he continued to act in the same manner which led to his initial counseling. He demonstrated an unwillingness to accept constructive criticism. His sullen and irresponsible attitude was reflected in his substandard duty performance. He (the commander) was convinced that the applicant was incapable of developing into the high quality Soldier needed by the Army. b. The final decision on the type discharge furnished in his case rested with the discharge authority. If he was furnished a general discharge, he might expect to encounter substantial prejudice in civilian life and he had the right to consult with a Judge Advocate General’s Corps officer prior to completing his acknowledgement. 4. On 8 April 1975, the applicant acknowledged notification of his proposed discharge from the Army. He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army; the effect on future enlistment in the Army; the possible effects of a general discharge; and of the procedures and rights that were available to him. * he voluntarily consented to this discharge * he acknowledged he understood if he received a general discharge he could expect to encounter substantial prejudice in civilian life * he elected not to submit a statement in his own behalf 5. Subsequent to this acknowledgement, the immediate commander initiated separation action against the applicant due to his conduct demonstrating disrespect for authority and an unwillingness to comply with the most basic military regulations. 6. On 10 April 1975, the separation authority approved the applicant's discharge under the provisions of the EDP by reason of failure to meet acceptable standards for continued military service and directed that he receive a General Discharge Certificate. On 25 April 1975, the applicant was discharged accordingly. 7. His DD Form 214 (Report of Separation from Active Duty) shows he completed 9 months and 3 days of active service. 8. On 3 August 1982, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable. The ADRB denied his petition for an upgrade of his discharge. 9. He provides three letters of support or character reference letters from individuals who describe the applicant as: * a hard worker who is also considerate of others and can be a great asset for any company or organization * a caring person who is determined to elevate his level of personal accomplishment * a persona who consistently displays the thirst to learn new things and duties * a good tenant and an asset to the neighborhood REFERENCES: 1. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. 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. 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. 2. Army Regulation 635-200, 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. DISCUSSION: 1. The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel because of his inability to meet acceptable standards for continued military service. Accordingly, his immediate commander initiated separation action against him. The applicant voluntarily consented to his discharge. His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. 2. The separation authority determined the applicant’s service had not risen to the level required to be characterized as fully honorable. There is no clear evidence of error, injustice, or inequity in the characterization of his service. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160008197 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008197 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2