IN THE CASE OF:	  

		BOARD DATE:	      25 September 2008

		DOCKET NUMBER:  AR20080013217


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, in effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he was an “A1” Soldier prior to the death of his son, after which he went numb.  He states that the doctors could not explain the cause of his son's death and as a result, he blamed the Army.  He states that he wishes he handled it differently and claims he would have remained a great Soldier had this not have happened.  

3.  The applicant submits an Application for the Review of Discharge from the Armed Forces of the United States (DD Form 293) 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 military record shows he enlisted in the Regular Army (RA) and entered active duty on 29 September 1982.  He completed basic combat and advanced individual training (AIT) at Fort Leonard Wood, Missouri.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle/Power Generation Mechanic).

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he was promoted to the rank of private first class (PFC) on 30 August 1983, and this was the highest rank he obtained while serving on active duty.  It also shows that he was reduced to the rank of private/E-2 (PV2) on 21 December 1983.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant’s disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:  19 September 1983, for breaking restriction; 26 August 1983, for failure to repair; and 21 December 1983, for being absent without leave (AWOL) from 8 November to 7 December 1983.  

5.  On 12 January 1984, a Bar to Reenlistment Certificate (DA Form 4126-R) was initiated against the applicant based on acts of misconduct that resulted in his three records of NJP.

6.  On 14 August 1991, the applicant underwent a mental status evaluation.  The results of this evaluation showed that the applicant's behavior and thought content was normal, he was fully alert and oriented, he had an unremarkable mood, his thinking process was clear, and his memory was good.  It was also determined that the applicant was mentally responsible, met retention requirements, and had the mental capacity to understand and participate in separation proceedings.

7.  On 3 February 1984, the applicant was notified by his unit commander that action was being taken to separate him from the Army under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactory performance.  The reasons cited for the action was the applicant’s acts of misconduct resulting in NJP combined with his negative attitude towards work and the Army.

8.  On 9 February 1984, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and of the effect of a waiver of those rights. 

9.  Subsequent to receiving legal counsel, the applicant completed an election of rights, in which he acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if he received a GD.  He elected not to submit a statement in his own behalf.

10.  On 27 February 1984, the separation authority approved the applicant’s separation under the provisions of chapter 13, Army Regulation 635-200, by reason of unsatisfactory performance, and directed that the applicant receive a GD.  On 12 March 1984, the applicant was discharged accordingly.  The separation document (DD Form 214) he was issued at the time shows he completed a total of 1 year, 4 months, and 15 days of creditable active military service and that he accrued 29 days of time lost due to AWOL.  

11.  On 26 June 2008, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge; however, he had exceeded the 15-year statute of limitations for application to the ADRB.  

12.  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.  The applicant’s contention that his GD should be upgraded to an HD was carefully considered.  However, there is insufficient evidence to support granting the requested relief.

2.  The applicant's record documents no acts of valor, significant achievement or service warranting special recognition.  However, the record does reveal an extensive disciplinary history that includes his acceptance of NJP on three separate occasions.  The applicant's acts of misconduct demonstrated by this disciplinary record clearly diminished the overall quality of his service below that meriting a fully honorable discharge, and supported his separation for unsatisfactory performance.

3.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with the regulation in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The record is void of any documentation regarding the death of the applicant's son, or that shows he ever sought counseling or assistance from his chain of command to deal with this problem.  As a result, absent any evidence of an error or injustice related to the applicant's separation processing, there is an insufficient evidentiary basis to support granting the requested relief. 

5.  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.



      ________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)                                         AR20080013217



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ABCMR Record of Proceedings (cont)                                         AR20080013217



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