IN THE CASE OF:	 

		BOARD DATE:	  12 NOVEMBER 2008

		DOCKET NUMBER:  AR20080015228 


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 discharge characterized as “Under Honorable Conditions” be upgraded to “Honorable Conditions.”  

2.  The applicant states, in effect, that he was told his discharge would automatically be changed after 6 months.  He states that if he had known that the characterization of his discharge would affect his right to benefits, he would have not taken the discharge without having a lawyer present. 

3.  The applicant provides a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, in support of his request. 

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 record shows he enlisted in the Regular Army (RA), on 27 May 1987, for a period of three years with an Expiration of Term of Service (ETS) date of 28 May 1990.  The applicant successfully completed basic combat training and advanced individual training at Fort Sill, Oklahoma.  On completion of one station unit training (OSUT) he was awarded military occupational specialty (MOS) 13B Cannoneer.

3.   The applicant was promoted to Private/E-2 on 27 November 1987, to Private First Class/E-3 on 1 January 1988, and to Specialist Four/E-4 on 1 July 1988. 

4.  The applicant remained assigned to Fort Sill until he was separated from 
the United States Army, on 8 February 1990, under the provisions of Chapter 13, Army Regulation (AR) 635-200, for unsatisfactory performance.   He was transferred to the United States Army Reserve (Annual Training) Control Group with an obligation to serve in the Reserve until 10 May 1995.

5.  The applicant was counseled several times for failure to be at his place of duty, missing formation, failure to follow instructions, and for improperly handling his financial responsibilities.

6.  On 13 April 1989, the applicant was issued a Bar to Reenlistment Certificate.  The applicant did not appeal the Bar to Reenlistment.

7.  On 20 April 1989, the applicant received non-judicial punishment (NJP) under the provision of Article 15, of the Uniform Code of Military Justice (UCMJ), for failure to go to his appointed place of duty, to wit, Physical Training formation on 13 and 19 April 1989. His punishment consisted of extra duty and restriction to the company area for a period of 14 days. 

8.  On 7 June 1989, the applicant was notified that he was being considered for separation under the provisions of Chapter 13, AR 635-200, for unsatisfactory performance as a result of his inability to manage his financial responsibilities.  The applicant was advised that this action for separation may be effective prior to his termination of service.  The applicant acknowledged and stated he understood the counseling.  

9.  On 27 December 1989, the applicant received NJP for stealing $100.00, the property of the US Government, Criminal Investigation Command (CID) funds.  His punishment consisted of a reduction to private first class, a forfeiture of $200.00 (suspended for 180 days), 45 days of extra duty and 45 days of restriction.

10.  The applicant underwent a mental status evaluation on 3 January 1990.  His mental status evaluation revealed a fully oriented alert individual whose behavior was normal.  His mood or affect was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  He possessed sufficient mental capacity to understand and participate in proceedings.  He was psychiatrically cleared for any administrative action deemed appropriate by his command.

11.  On an unknown date, the applicant’s commander recommended that he be separated from the service under the provisions of Chapter 13, Army Regulation 635-200 before his ETS with a general, under honorable conditions discharge.  The commander’s recommendation was based on the applicant receiving letters of indebtedness, derogatory counseling statements, and two Articles15.  The commander requested that rehabilitative transfer be waived. 

12.  On 29 January 1990, the applicant acknowledged his commander's intent to separate him from the Army.  After consulting with an officer of the Trial Defense Service, the applicant waived his rights and elected not to submit a statement in his own behalf. 

13.  On 30 January 1990, the separation authority approved the waiver of rehabilitation transfer and recommendation for the applicant’s discharge and directed that he be furnished a general discharge.  The applicant was discharged on 8 February 1990, in pay grade of E-1.  He had completed a total of 2 years, 8 months, and 16 days of creditable service with no lost time. 

14.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative 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.  When separation for unfitness was warranted an UD was normally considered appropriate.

15.  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, 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.

16.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was separated under the provisions of Chapter 13, Army Regulation 635-200, for unsatisfactory performance and was issued a general discharge.  The evidence shows the applicant's discharge was based on his numerous derogatory counseling statements, receiving letters of indebtedness, and for being issued two NJP’s.  

2.  Contrary to the applicant's assertions that he was told his discharge would automatically be changed after 6 months, the Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Soldiers are advised at the place of their separation that it is their responsibility to request an upgrade if they receive less than an honorable discharge.  When an application for the upgrade of a discharge is received, each case is decided on its own merits.  A change may be warranted if the Board determines that the characterization of service or the reason for discharge, or both, were improper or inequitable.

3.  The applicant stated, in effect, that if he had known the characterization of his discharge would affect his rights to benefits, he would not have agreed to the imposed discharge without the advice of legal counsel.  The evidence shows the applicant received counseling from a member of the Trial Defense Service at Fort Sill.  He was advised of his rights and of the reasons for the contemplated separation action.  

4.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the characterization of his discharge.

5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge, under honorable conditions.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

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)                                         AR20080015228



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080015228



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1