IN THE CASE OF:	  

		BOARD DATE:	        11 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010166 


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 discharge.    

2.  The applicant states that at the time, he requested to be discharged from the Army and that he was offered a general, under honorable conditions discharge, and accepted it.  However, after he had agreed to the discharge, he was shot, and despite having medical problems, he has lived a good life and stayed out of trouble since his discharge.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 7 April 1987, a copy of his DD Form 215 (Correction to the DD Form 214), dated 9 October 1987, and a copy of his General Discharge Certificate, dated 7 April 1987, 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 10 January 1986.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76Y (Supply Specialist).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant's records show that he was awarded the Army Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.  The applicant's records do not show any significant achievements or 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 29 October 1986, for being derelict in the performance of his duties, on or about 28 October 1986.  His punishment consisted of forfeiture of 14 days of restriction and 14 days of extra duty;  

	b.  on 28 January 1987, for possessing and consuming alcohol in the billets area (also noted he was under the drinking age of 21).  His punishment consisted of forfeiture of 14 days of restriction and 14 days of extra duty; and  

	c.  on 20 February 1987, for failing to go at the time prescribed to his appointed place of duty, on or about 11 February 1987.  His punishment consisted of reduction to private (PVT)/E-1, forfeiture of $153.00 pay, 14 days of restriction, and 14 days of extra duty.  

5.  The applicant’s records reveal multiple performance, personal, and disciplinary counseling statements, on various dates, that included failure to follow instructions, driving a privately owned vehicle without a license or insurance, poor appearance (uniform, haircut), and failure to follow standard procedures in dispatching military vehicles. 

6.  On 10 March 1987, 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 10 March 1987, the applicant acknowledged receipt of the commander's intent to separate him, and on 11 March 1987, he consulted with legal counsel and 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 on his own behalf.

8.  On 11 March 1987, the applicant’s immediate commander initiated separation action against him in accordance with AR 635-200 because of unsatisfactory performance.  The immediate commander further recommended a waiver of the rehabilitative transfer requirements and recommended a General Discharge Certificate. 

9.  On 12 March 1987, 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 7 April 1987.  The DD Form 214 he was issued confirms he was discharged with a characterization of service of an under honorable conditions (general).  This form further confirms he completed a total of 1 year, 2 months, and 28 days of creditable military service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his first discharge within its 15-year statue of limitations.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.   There is no evidence in the available record and the applicant did not provide any substantiating evidence that his unsatisfactory performance was the result of being shot or his subsequent alleged medical conditions.  

2.  The applicant’s positive/good life subsequent to his discharge and the fact that he has been out of trouble since his discharge were noted; however, they are not sufficiently mitigating for the requested relief.   

3.  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. 

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 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

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080010166





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ABCMR Record of Proceedings (cont)                                         AR20080010166



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