IN THE CASE OF:	  

		BOARD DATE:	  	  15 January 2009

		DOCKET NUMBER:  AR20080014481 


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 under honorable conditions (general) discharge be upgraded so he can attend the police academy class. 

2.  The applicant states, in effect, that he applied for admittance to the upcoming police academy class with the Polk County Police Sheriff's Department but was denied admittance because of his under honorable conditions discharge.  

3.  The applicant provides copies of untranslated certificates from various police and justice departments in Puerto Rico. 

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 Regular Army on 17 September 1987.  He completed the required training and was awarded military occupational specialty (MOS) 76P (Material Control and Accounting Specialist).  The highest rank he attained while serving on active duty was private first class (E-3).

3.  The applicant's record documents no acts of valor, significant achievement or service warranting special recognition.

4.  On 2 June 1987, the applicant accepted nonjudicial punishment (NJP) for without authority willingly not showing up at his appointed place of duty on 16 May 1987.  His imposed punishment was a reduction to the grade of private E-2,
14 days of restriction and 14 days extra duty.

5.  On 13 October 1987, the applicant accepted NJP for failure to go at the time prescribed to his appointed place of duty on 25 September 1987.  His imposed punishment was a reduction to the grade of private E-1, 14 days of restriction and 14 days extra duty.

6.  The applicant's record also shows he was given seven general counseling statements from 18 September 1986 through 27 September 1987 for various offenses including writing checks with insufficient funds, overall performance, not maintaining uniform standards, and repeated failure of the Army Physical Fitness Test.

7.  On 30 September 1987, the applicant’s unit commander notified him that he was initiating action to separate him under the provisions of Army Regulation
635-200 (Personnel Separations), paragraph 13-2, for unsatisfactory performance based on failure to meet acceptable military standards.  The unit commander based this action on the applicant’s failure to pay his debts, substandard performance, and failure of the Army Physical Fitness Test.

8.  On 14 October 1987, the applicant consulted with legal counsel and was advised of the basis for the contemplated action and the rights available to him.  The applicant waived his right and he did not submit statement on his own behalf.  He acknowledged that he understood that he would have less than 
6 years of total active and/or reserve military service at the time of separation; therefore, he was not entitled to have his case heard by a board of officers.  He also understood that he may expect to encounter substantial prejudice in civilian life if a less than honorable discharge was issued to him.  

9.  On 12 November 1987, the appropriate authority approved the applicant’s separation recommendation, waived further rehabilitative efforts, and directed the issuance of a under honorable conditions discharge.  On 13 November 1987, the applicant was discharged under honorable conditions (general) in pay grade E-1 under the provisions of Army Regulations 635-200, paragraph 13-2, by reason of unsatisfactory performance.  The DD Form 214 he was issued confirms he completed a total of 2 years, 1 month, and 27 days of creditable active military service.

10.  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.

11.  The applicant submitted copies of untranslated certificates from various police and justice departments in Puerto Rico.

12.  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.

13.  Army Regulation 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 (emphasis added), 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 contention that his discharge should be upgraded was carefully considered and found to be without merit.

2.  Based on his disciplinary record, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis to grant an honorable discharge.

3.  The evidence of record confirms the applicant’s discharge from active duty was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons therefore were appropriate, considering all the facts of the case.  The applicant's repeated unsatisfactory performance diminished the quality of his service below that meriting a fully honorable discharge.

4.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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)                                         AR20080014481



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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