RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 February 2008
	DOCKET NUMBER:  AR20070013723 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Carmen Duncan

Member

Ms. Rea M. Nuppenau

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, in effect, that his general discharge under honorable conditions be upgraded to honorable and that the narrative reason for his separation be corrected to show satisfactory performance. 

2.  The applicant states, in effect, that his record is in error due to unknown circumstances.  He needed to get out of the Army because of his mother's poor health.  When the process seemed slow and complicated he intentionally disobeyed an order so he would be removed from service in order to care for his ailing mother.

3.  The applicant provides an undated and unsigned self-authored statement, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 23 March 1984 in support of his application. 

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.  On 2 August 1983, the applicant enlisted in the Regular Army for 4 years.  He successfully completed his initial training and was awarded the military occupational specialty (MOS) 13B (Cannon Crewman).  

3.  On 30 November 1983, the applicant was assigned for duty with B Battery, 5th Battalion, 8th Field Artillery at Fort Bragg, North Carolina. 

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 9 December 1983 and 9 March 1984, for willful disobedience of lawful orders of superior noncommissioned officers on or about 6 December 1983, 1 March 1984, and
5 March 1984. 
5.  The applicant's record further shows that he received counseling on three separate occasions for the following: on 24 January 1984, for deficiency in military discipline, lack of accountability, and poor general soldiering skills; on 30 January 1984, for poor conduct, lack of military bearing, lack of initiative, lack of discipline, poor technical skills within his MOS, and a general level of unsatisfactory performance; and on 14 February 1984, for failure to obey lawful orders of a superior noncommissioned officer.

6.  On 27 February 1984, the unit commander notified the applicant of his intent to separate him under the provisions of chapter 13, Army Regulation 635-200 (Enlisted Personnel - Personnel Separations), by reason of unsatisfactory performance, citing the applicant's failure to obey lawful orders of superior noncommissioned officers on three separate occasions as the basis for the action.

7.  On 5 March 1984, the applicant consulted with counsel and elected not to make a statement on his own behalf.

8.  On 6 March 1984, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He also stated that the applicant had been counseled on numerous occasions concerning his performance and that he was given every opportunity to excel.  The commander further stated that the applicant should not be rehabilitatively transferred because he did not believe the applicant would develop into the quality Soldier desired by the United States Army.    

9.  On 7 March 1984, the appropriate authority approved the recommendation and directed that the applicant be issued a General Discharge Certificate.  

10.  Accordingly, the applicant was discharged with a general discharge, under honorable conditions on 23 March 1984.  He had completed 7 months and
22 days of creditable active federal service.  The DD Form 214 he was issued shows the entry in Item 28 (Narrative Reason for Separation) "Unsatisfactory Performance."

11.  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.


12.  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.

13.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

15.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes the standardized policy for preparing and distributing the DD Form 214, specifically paragraph 2-1, which states that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The regulation further states that the narrative reason for separation cited on the DD Form 214 is based on regulatory guidance or other authority that directs the discharge or separation of a Soldier from active duty. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded and that the narrative reason for his discharge be corrected to reflect the upgraded discharge. The applicant provided a personal statement which stated that his unsatisfactory performance was due to the illness of his mother, the impact of her poor health on his extended family, and his desire to assist her.  

2.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with the regulation in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process and that he chose not submit a statement in his own behalf.  

3.  The applicant’s disciplinary history shows repeated acceptance of NJP for failure to obey lawful orders of superiors.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he was properly separated under the regulatory guidance of enlisted personnel separations specifically for unsatisfactory performance.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JTM_ _  __CD  _ _  __RMN__  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.




___John T. Meixell    __
      CHAIRPERSON
INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080214
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.