IN THE CASE OF:	

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080009315 


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states that the upgrade is warranted due to the punishment that was issued at the time and the realization that he should have reached out to the proper authorities and the fact that he did not ask for a hearing or appeal the decision.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 6 December 1983; a self-authored letter, dated 23 April 2008; a character reference letter, dated 22 April 2008; a copy of DD Form 4 (Enlistment/Reenlistment Document-Armed Forces of the United States), dated 4 June 1982; and DA Form 2-1 (Personnel Qualification Record), 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 he enlisted in the Regular Army for a period of 3 years on 3 August 1982.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76W (Petroleum Supply Specialist).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant's records show he was awarded the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  The applicant's records do not show any significant achievements/accomplishments during this period of military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 25 August 1983, for failing to go at the time prescribed to his appointed place of duty on three separate occasions, on or about 9 August 1983 and on or about 10 August 1983.  His punishment consisted of forfeiture of $150.00 pay per month for two months and 30 days of correctional custody.  The applicant appealed his punishment on 25 August 1983; however, his appeal was denied on 2 September 1983; and 

	b.  on 22 September 1983, for being absent without leave (AWOL) during the period from on or about 30 August 1983 to on or about 31 August 1983.  His punishment consisted of reduction to private (PVT)/E-1, forfeiture of $200.00 pay per month for two months, 45 days of restriction, and 45 days of extra duty.  The applicant appealed his punishment on 22 September 1983; however, his appeal was denied on 8 October 1983.  

5.  The applicant’s records reveal multiple performance, personal, and disciplinary counseling statements, on various dates that included multiple instances of failure to follow instructions and failure to go to his appointed place of duty at the prescribed time; poor appearance and non-compliance with shaving profile; failure to repair; and failure to follow basic instructions.




6.  On 10 November 1983, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations), for unsatisfactory performance and inability to conform to military standards of conduct.  The immediate commander recommended a General Discharge Certificate.   

7.  On 16 November 1983, the applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He further declined making a statement in his own behalf.

8.  On 22 November 1983, the applicant’s immediate commander initiated separation action against him in accordance with AR 635-200 because of unsatisfactory performance.  The immediate commander remarked that the applicant had demonstrated continuous substandard duty performance and that his immature and maladjusted attitude mandated his release from active duty.  He had been frequently counseled; however, he did not show the ability or desire to cope with the daily responsibilities of being a Soldier.  He could not accomplish even the most simplest tasks without constant supervision.  The immediate commander further recommended a waiver of the rehabilitative transfer requirements and recommended a General Discharge Certificate. 

9.  On 22 November 1983, the applicant’s intermediate commander recommended approval of the applicant’s discharge. 

10.  On 5 December 1983, the separation authority approved the applicant’s discharge, under the provisions of AR 635-200 by reason of unsatisfactory performance, waived the rehabilitative requirements, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 6 December 1983.  The DD Form 214 he was issued confirms he was discharged with a characterization of service of under honorable conditions (general).  This form further confirms he completed a total of 1 year, 4 months, and 3 days of creditable military service, and 1 day of lost time due to AWOL.

11.  In his self-authored statement, dated 23 April 2008, the applicant states that he was severely punished under the provisions of Article 15 after being caught sleeping at the recreation department.  He also adds that he addressed the issue with his immediate commander and it appeared that the immediate commander 
was trying to make an example out of him (the applicant).  He concludes that he is honored to have had the opportunity to serve his country and he realizes today that he should have requested a hearing or appeal the decision to discharge him. 

12.  In a character reference letter, dated 22 April 2008, a Vietnam veteran and friend of the applicant, states that the applicant is a kind, loving, and caring individual.  He was young at the time and, in effect, did not realize the implications of his decision.  Nevertheless, he has now grown and matured and he truly wishes he could reverse that decision.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 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.  AR 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 his discharge should be upgraded because he should have reached out to the proper authorities and the fact that he did not ask for a hearing or appeal the decision was carefully considered and found to be without any merit.  

2.  The evidence of record shows that the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards.  Accordingly, his immediate commander initiated separation action against him.   All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  There does not seem to be an error or an injustice in his discharge. 
3.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ____X___  __X____  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.



      __________X____________
               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)                                         AR20080009315



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ABCMR Record of Proceedings (cont)                                         AR20080009315



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