RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 March 2008
	DOCKET NUMBER:  AR20080000669 


	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

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Gerald J. Purcell

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 an upgrade of his discharge.

2.  The applicant states that he was already married with two children when he enlisted in the Army at a young age.  He further adds that throughout his military service, his spouse at the time mismanaged their financial affairs which eventually led to his general discharge.  He concludes that his spouse took advantage of his military service to advance her own interests while he was left with the challenges of dealing with a general discharge.  

3.  The applicant did not provide any additional documentary evidence 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.  The applicant's records show that he enlisted in the Regular Army at the age of 19 on 3 November 1982 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.  He was unmarried at the time he enlisted but the records show that he later acquired a spouse and 4 dependent children.

3.  The applicant's records show that he was awarded the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Mechanic Badge.  His records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 17 June 1985, for failing to go at the time prescribed to his appointed place of duty on or about 13 May 1985.  His punishment consisted of reduction to the rank/grade of private first class (PFC)/E-3, 14 days of restriction, and 14 days of extra duty.  

5.  On 31 May 1985, the applicant was enrolled in the Army Community Service Financial Management Program due to multiple returned checks, letters of indebtedness, and unpaid bills and charges.  He was subsequently disenrolled from the program on 17 July 1985 because he broke his Financial Management agreement by failing to make appointments, continuing to buy on credit, or by not cooperating in some other form.

6.  On 9 August 1985, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on or about 16 July 1985.  His punishment consisted of reduction to the rank/grade of private (PV2)/E-2, 14 days of restriction, and 14 days of extra duty.  He appealed his punishment to the next superior authority on 9 August 1985, but his appeal was denied by the next superior authority on 15 August 1985.  However, on 28 August 1985, the superior authority set aside the punishment of reduction in grade to PV2/E-2, 14 days of restriction, and 14 days of extra duty, imposed on 9 August 1985, on the basis that the evidence did not support the charge. 

7.  On 21 August 1985, the immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing the applicant’s unreliability and gross lack of character and lack of motivation in managing his military and personal affairs and failure to respond to counseling.  

8.  On 5 September 1985, the applicant's immediate commander initiated a memorandum advising the applicant of his intent to recommend his separation from the Army for unsatisfactory performance and disqualification for further service under chapter 13 of Army Regulation 600-200 (Personnel Separations).  

9.  On 5 September 1985, the applicant acknowledged receipt of the letter of notification of separation action in accordance with chapter 13 of Army Regulation 635-200.  He further waived his right to legal counsel and declined submitting a statement on his behalf for consideration.



10.  On 26 September 1985, the immediate commander initiated separation action against the applicant for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200.  The commander stated that the applicant showed no motivation to behave in a military fashion, as shown by his repeated lateness, absence, and financial indiscipline and that these incidents showed that he had no interest in behaving in a way which was in line with the good order and discipline of military service and that it was evident that he would not develop into a satisfactory Soldier.  

11.  On 30 September 1985, the applicant’s battalion commander approved the applicant’s Bar to Reenlistment Certificate.  

12.  On 1 October 1985, the separation authority approved the applicant's discharge from the Army for unsatisfactory performance and directed that he receive a General Discharge Certificate.  Accordingly, on 17 October 1985, the applicant was discharged.  The DD Form 214 he was issued confirms he was discharged for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200, with an Under Honorable Conditions (General) Discharge.  This form also shows that she completed 2 year, 11 months, and 15 days of creditable active military service.

13.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 
15 year statute of limitations.

14.  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.

15.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to an upgrade of his discharge. 

2.  The applicant's records show he was age 19 and single with no dependents when he enlisted.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service. Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

3.  The applicant's records reveal a disciplinary history which includes multiple performance counseling statements, a bar to reenlistment, one instance of Proceedings Under Article 15, and failure to respond to financial counseling.  His discharge was in accordance with applicable regulations and all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service. 

4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__rtd___  __gjp___  __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.



							Richard T. Dunbar
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.