IN THE CASE OF:	  

		BOARD DATE:	       30 October 2008

		DOCKET NUMBER:  AR20080011870


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 his discharge be upgraded to honorable.

2.  The applicant states he was a good Soldier and won a section competition and another award.  His discharge was based on one isolated incident.  It has been 25 years since his discharge and he would like an upgrade.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years on 2 February 1982.  On 6 September 1982, he was discharged from the DEP and enlisted in the Regular Army for 3 years on 7 September 1982.

3.  The applicant completed One-Station Unit Training (OSUT) at Fort Sill, Oklahoma, and was awarded military occupational specialty (MOS) 13B (Cannon Crewman).

4.  The applicant’s service record is replete with numerous acts of misconduct and violations of military discipline, to include:

	a.  a civilian arrest and conviction for drunk and disorderly on 9 January 1983;

	b.  testing positive for marijuana on 5 May 1983;

	c.  failure to repair on 26 August 1983 (missing two formations) and 14 September 1983 (missing one formation);

	d.  dishonored checks at the Post Exchange on 19 October 1983; and

	e.  nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for disobeying a lawful order on 7 January 1984 not to possess hard liquor, and for possession of marijuana on 7 January 1984.

5.  On 12 January 1984, the applicant’s commander initiated action to administratively discharge the applicant under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The applicant was notified and consulted with legal counsel concerning the ramifications of a chapter 13 discharge.  He acknowledged notification and waived his rights.

6.  The separation action was forwarded to the approving authority and, on 12 January 1984, he approved the applicant’s separation with a general, under honorable conditions discharge.

7.  On 7 February 1984, the applicant was issued a general, under honorable conditions discharge under the provisions of chapter 13, Army Regulation 
635-200, by reason of unsatisfactory performance.  He had 1 year, 5 months, and 1 day of creditable service.

8.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant would like a discharge upgrade to honorable.

2.  The applicant’s discharge was not based on an "isolated incident"; it was based on an accumulation of incidents, small and large.  The applicant was a multiple drug abuser; he was also cavalier about reporting for duty; he was arrested by civil police for drunk and disorderly conduct; and he bounced a check at the Post Exchange.

3.  The applicant’s conduct was not up to the standard required of Soldiers and caused his early release from active duty.  Considering his various acts of indiscipline, he is fortunate his chain of command did not separate him for misconduct under chapter 14 of Army Regulation 635-200 which could have brought him an under other than honorable conditions discharge.

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 this requirement.

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.


																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)                                         AR20080011870



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ABCMR Record of Proceedings (cont)                                         AR20080011870



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