IN THE CASE OF: BOARD DATE: 31 May 2018 DOCKET NUMBER: AR20160008521 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: 31 May 2018 DOCKET NUMBER: AR20160008521 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 under honorable conditions discharge to a fully honorable discharge. 2. The applicant states he wants to take advantage of programs provided by the Department of Veterans Affairs (VA). 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 26 June 1980. 3. Summary Court-Martial Order Number 3, dated 18 March 1981, shows he was found guilty of: * unlawfully striking another Soldier in the face with his fist and biting his neck * unlawfully striking another Soldier on the face and body with his fist * wrongfully communicating a threat to kill another Soldier 4. The applicant's immediate commander notified him 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)), by reason of poor attitude, lack of self-discipline, inability to adapt socially and emotionally, failure to demonstrate promotion potential, hostility towards the Army, inability to accept instructions and directions, and his lack of cooperation with peers and superiors. 5. 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 the procedures and rights available to him. He voluntarily consented to this discharge and elected not to submit a statement in his own behalf. 6. An authorized official approved the applicant's discharge under the provisions of paragraph 5-37 of Army Regulation 635-200 by reason of failure to meet acceptable standards for continued military service and directed the issuance of a General Discharge Certificate. On 10 April 1981, the applicant was discharged accordingly. His DD Form 214 (Report of Separation from Active Duty) shows he completed 9 months and 5 days of active military service. 7. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: a. 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, provides: (1) Members who completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who 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 EDP. (2) 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. A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge. DISCUSSION: 1. The applicant request his discharge be upgraded so he may be able to take advantage of VA programs; however, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for benefits. 2. The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel for continued military service. He was found guilty by summary court-martial. Accordingly, his immediate commander initiated separation action against him and he voluntarily consented to his discharge. 3. His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The separation authority determined his service had not risen to the level required for a fully honorable discharge. 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) AR20160008521 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008521 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2