IN THE CASE OF: BOARD DATE: 24 July 2008 DOCKET NUMBER: AR20080004009 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 that his general discharge under honorable conditions be upgraded to fully honorable. 2. The applicant states that he was discharged because of his ex-wife’s actions. He was unaware that he could request an upgrade. 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 16 February 1984. He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman). 3. Between February 1985 and April 1985, the applicant received several counseling statements for infractions such as failing to get a haircut (upon which the applicant commented that he was unable to sit in a barber chair due to having a full-leg cast); being out of uniform; failing to shorten his dress green trousers after being told to have it done; unprofessional performance of duty (laying his weapon out of sight while on guard duty); failing to observe common military courtesy; and having a negative attitude even after being transferred to another squad. 4. On 8 March 1985, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty. 5. On 2 April 1985, the applicant’s commander initiated separation proceedings on the applicant under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. His recommendation cited the applicant’s marked inability to function as a Soldier and his demonstration of his inability to develop a sense of discipline or to adequately perform any assigned duties. 6. On 2 April 1985, the applicant was advised by consulting counsel of the basis for the contemplated separation action. He elected not to submit a statement in his own behalf. He acknowledged that he understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were to be issued to him. 7. On 2 May 1985, the applicant was formally recommended for discharge. The commander noted that the applicant’s behavior was not in keeping with the standards expected to be maintained. He had been counseled as well as warned as to the consequences of not performing up to prescribed military standards on numerous occasions. He had been punished under the Uniform Code of Military Justice and had a problem of indebtedness. 8. On 2 May 1985, the appropriate authority approved the recommendation and directed that the applicant be given a General Discharge Certificate. 9. On 17 June 1985, the applicant was discharged, with a general discharge under honorable conditions, in pay grade E-2, under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance. He had completed 1 year, 4 months, and 2 days of creditable active service and had no lost time. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 11. 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 AND CONCLUSIONS: 1. Unless the applicant blames his ex-wife for his indebtedness problems, it is difficult to see how his ex-wife could have been responsible for the other infractions that resulted in his being given numerous counseling statements and his Article 15. 2. The applicant’s administrative separation was accomplished in compliance with applicable regulations. The type of discharge given was and is still appropriate considering the overall quality of his service. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __xx____ ___xx___ __xx____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ________xxxx___________ 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. ABCMR Record of Proceedings (cont) AR20080004009 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080004009 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1