RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 17 April 2008
DOCKET NUMBER: AR20080001297
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.
Director
Analyst
The following members, a quorum, were present:
Chairperson
Member
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 Dishonorable Discharge under Honorable Conditions, Chapter 13 be upgraded to a General Discharge or Honorable Discharge.
2. The applicant makes no additional statement.
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 applicants 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 applicants 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 23 July 1980. He completed basic training and advanced individual training and was awarded military occupational specialty 13F (Fire Support Specialist).
3. On 30 November 1982, the applicant was counseled for failure to report to duty and formation, for being asleep during duty hours, and for fabrication of facts.
4. On 29 December 1982, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for stealing the motorcycle of another Soldier and for being disrespectful in language towards a superior noncommissioned officer.
5. On 3 January 1983, the applicant underwent a mental status evaluation. The examining physician found the applicant to have the mental capacity to understand and participate in proceedings.
6. On 7 January 1983, the applicant completed a separation physical and was found qualified for separation.
7. On 13 January 1983, the applicants commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. He noted the applicant did not respect superior authority, had been verbally counseled and counseled by his section chiefs, and he was transferred from the FIST (fire support team) section to supply but had not made any progress.
8. The applicant was advised by his consulting counsel of the basis for the contemplated action to separate him, of its effects, of the rights available to him, and of the effect of any action taken by him in waiving his rights. He waived his rights and elected not to submit a statement in his own behalf.
9. On 9 February 1983, the appropriate authority approved the recommendation, waived rehabilitative transfer, and directed the applicant be furnished a general discharge.
10. On 11 February 1983, the applicant was discharged, in pay grade E-3, under the provisions of Army Regulation 635-200, chapter 13, unsatisfactory performance, with a general discharge under honorable conditions. He had completed 2 years, 6 months, and 19 days of creditable active service and had no lost time.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 of that regulation provides, in pertinent part, that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that, in the commanders judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.
12. 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 members 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. 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.
2. The applicants discharge was characterized as general under honorable conditions. His record of disciplinary actions, which included stealing the motorcycle of a fellow Soldier, does not warrant a characterization of fully honorable.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__tsk___ __jlp___ __dwt___ 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.
__ TSK _____
CHAIRPERSON
ABCMR Record of Proceedings (cont) AR20080001297
4
DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA 22202-4508
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