IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080012824 


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 he was young at the time and wanted to go home.  He did not understand the implications of his discharge.  However, since his discharge, he has had an excellent employment record and good standing in the community and would like to go into law enforcement.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 23 August 1984; and a copy of his Resume, 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 was born on 10 February 1965 and enlisted in the Regular Army at 17 years and 7 months of age for a period of 3 years on 1 October 1982.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 91B (Medical Specialist). The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records show he was awarded the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  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 18 June 1984, for being absent without leave (AWOL) during the period on or about 23 May 1984 through on or about 31 May 1984.  His punishment consisted of forfeiture of $250.00 pay per month for one month, 30 days of extra duty, and reduction to the rank/grade of private (PV1)/E-1 (the portion of the reduction to PV1 was suspended for 60 days); 

	b.  on 21 August 1984, the suspension of the applicant's punishment of reduction to PV1/E-1, imposed on 18 June 1984, was vacated, for failing to go at the time prescribed to his appointed place of duty.

5.  On 2 August 1984, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his AWOL and failure to go to his appointed place of duty.  The applicant was furnished with a copy of the bar and made a statement on his own behalf.  The bar to reenlistment was subsequently approved by his battalion commander on 7 August 1984.

6.  The applicant’s records reveal multiple performance, personal, and disciplinary counseling statements, on various dates that included multiple instances of failure to follow instructions; failure to go to his appointed place of duty at the prescribed time; unauthorized absence from duty; failure to follow sick call procedures; extensive history of missing formations; several instances of disobeying lawful orders; traffic violations; dereliction of duty; and failure to follow basic instructions.



7.  On 2 August 1984, 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.   

8.  On 2 August 1984, the applicant acknowledged receipt of the commander's intent to separate him and on 14 August 1984 he 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 waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and further declined making a statement in his own behalf.

9.  On 14 August 1984, 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's retention would have an adverse effect on military discipline, good order, and morale, and that he was likely to have a disruptive influence in assignments.  The immediate commander also stated that the applicant had been frequently counseled (18 times); however, he did not show the ability or desire to cope with the daily responsibilities of being a Soldier.  The immediate commander further recommended a General Discharge Certificate. 

10.  On an unknown date between 14 August 1984 and 23 August 1984, the separation authority approved the applicant’s discharge, under the provisions of AR 635-200 by reason of unsatisfactory performance, waived additional rehabilitative efforts, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 23 August 1984.  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, 10 months, and 17 days of creditable military service, and had 6 day of lost time due to AWOL.

11.  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.

12.  AR 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.

13.  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's records show he was 18 years of age when he was assigned to his first unit and began his pattern of unsatisfactory performance.  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 unsatisfactory performance was the result of his age.

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.  He also had a history of misconduct including two instances of Article 15 and a bar to reenlistment.  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.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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)                                         AR20080012824



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ABCMR Record of Proceedings (cont)                                         AR20080012824



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