RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060012388 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Ms. Susan Powers

Member

Mr. Qawiy Sabree

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his general discharge be upgraded to honorable.

2.  The applicant states that since being discharged from the military he has become a productive member of his community.

3.  The applicant provides one character reference letter and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 4 November 1982.  The application submitted in this case is dated 23 August 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted on 21 February 1980 for a period of 3 years.  He successfully completed One Station Unit Training in military occupational specialty 12B (combat engineer).

4.  Between 21 July 1982 and 1 October 1982, the applicant was counseled on several occasions for various infractions which included being late for formation, missing formation, and failure to repair.

5.  On 26 August 1982, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from his place of duty for one day and failure to repair.  His punishment consisted of a reduction to E-3 and 
7 days of correctional custody.

6.  On 14 October 1982, the applicant underwent a mental status evaluation.  The psychiatrist found him mentally responsible.

7.  On 15 October 1982, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.   

8.  On 20 October 1982, after consulting with counsel, the applicant acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected to submit a statement in his own behalf.  In summary, he stated that his attitude and performance took a turn for the worse due to severe marital problems.  He also stated that he did not believe that he had done enough wrong to deserve a general discharge.   

9.  On 27 October 1982, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.
    
10.  Accordingly, the applicant was discharged with a general discharge on 
4 November 1982 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served a total of 2 years, 8 months, and 14 days of creditable active service.  

11.  In support of his claim, the applicant provided a character reference letter from the Director of the Office of Veterans Affairs.  He attests that the applicant is the single father of a college student, that he is a well known and liked citizen of the community, and that he is very active in 4-H.  He states that the applicant made a mistake years ago while being young in the military, that the mistake harmed no one other than the applicant, and that the applicant regrets his general discharge.  

12.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

14.  Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  
 
DISCUSSION AND CONCLUSIONS:

1.  Good post service conduct alone is normally not a basis for upgrading a discharge.

2.  The character reference letter submitted on behalf of the applicant fails to show that his discharge was unjust and should be upgraded.

3.  Since his record of service included adverse counseling statements and one nonjudicial punishment, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.   

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

6.  Records show the applicant should have discovered the alleged injustice now under consideration on 4 November 1982; therefore, the time for the applicant to file a request for correction of any injustice expired on 3 November 1985.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.









BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JI______  ___SP___  ___QS___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_John Infante_________
          CHAIRPERSON




INDEX

CASE ID
AR20060012388
SUFFIX

RECON

DATE BOARDED
20070403
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19821104
DISCHARGE AUTHORITY
AR 635-200 Chapter 13
DISCHARGE REASON
Unsatisfactory Performance
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.