IN THE CASE OF:	  

		BOARD DATE:	  5 February 2009

		DOCKET NUMBER:  AR20080018155 


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 be upgraded to a fully honorable discharge.

2.  The applicant submitted no additional statement, other than what is stated above with regard to his request for an upgrade of his discharge to honorable.

3.  The applicant submitted no additional documentary evidence 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 enlisted in the US Army Reserve Delayed Entry Program (DEP) on 23 February 1980.  On 17 March 1980, he was discharged from the DEP and on 18 March 1980, he enlisted in the Regular Army and entered on active duty on the same date.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 27E (Tow-Dragon Repairer).

3.  The applicant volunteered for and successfully completed Basic Airborne Training and was awarded the Parachutist Badge.

4.  On 26 January 1981, the applicant was counseled for his outstanding performance of duty over the past 90 days.

5.  On 4 October 1983, the applicant was promoted to the rank and pay grade of Specialist Five (SP5)/E-5.  The applicant was laterally appointed to the rank of Sergeant (SGT) on 1 October 1985.  This would be the highest rank and pay grade the applicant would attain while he served on active duty. 

6.  On 27 September 1984, the applicant was counseled for failing to prepare for a class he had been tasked to give.

7.  On 4 December 1984, the applicant was counseled for being absent from the company's 1300 hours formation.

8.  On 8 February 1985, the applicant was counseled for failing to ensure that a contract vehicle was ready to roll in the morning, for leaving the shop area without signing out, and for failing to obey a lawful order by taking equipment keys out of the shop area without authority.

9.  On 9 February 1985, the applicant was counseled for his poor performance as a noncommissioned officer. 

10.  On 8 May 1985, the applicant was counseled because he failed to return rented equipment to the military Rent-All.

11.  On 25 June 1985, the applicant was counseled because during a health and welfare inspection a knife with a blade in excess of 2 1/2 inches was found in his wall locker.

12.  On 23 July 1985, the applicant was counseled for having a female companion in the area with him at the time he was on duty throughout the night.


13.  On 16 September 1985, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being derelict in the performance of his duties on 14 August 1985 by falling asleep while on duty as the charge of quarters.  The punishment imposed was 12 days extra duty in a supervisory capacity and a forfeiture of $100.00 which was suspended for 3 months.  The applicant did not appeal the punishment.

14.  On 15 October 1985, the applicant was counseled for being late to formation at 0830 and at 1300 hours.

15.  On 15 October 1985, the applicant was counseled for failing to adequately supervise the unit's personnel to ensure that cleanup was completed.

16.  On 12 November 1985, the applicant was counseled for failing to inspect those personnel who had been detailed to guard duty, failing to march guard personnel to the guard house for guard mount, and for failing to be prepared for guard duty on 9 November 1985.

17.  On 12 November 1985, the applicant was counseled for being late to the unit's first formation of the day.

18.  On 21 November 1985, the applicant was counseled that a bar to reenlistment was being initiated against him due to his inefficiency and substandard performance of duty.

19.  On 24 November 1985, the applicant was counseled because he had not responded to a request for reasons why he should not be barred from reenlistment for his inefficiency and substandard performance of duty.

20.  On 24 November 1985, the applicant's commander recommended the applicant be barred from reenlistment.  The applicant was advised of the basis for the action and was furnished a copy of the recommendation.  The applicant opted not to make a statement in his own behalf.  The evidence shows the Bar to Reenlistment Certificate was approved by the approving authority, a lieutenant colonel, on 12 December 1985.

21.  On 8 January 1986, the applicant was counseled for not being present at the unit to supervise the clean up, failing to prepare for a TA-50 inspection, and for failing to report to his supervisor's office as he had been instructed to do.

22.  On 13 February 1986, the applicant was counseled for being an hour late to head count in the mess hall (dining facility).

23.  On 15 March 1986, the applicant was counseled for failing to return from his dental appointment.

24.  On 1 April 1986, the applicant was counseled for failing to following instructions to clear his room in the barracks on 28 March 1986.

25.  On 2 April 1986, the applicant was counseled for neglecting to obey the lawful order given him to clear his room in the barracks of his personal belongings.

26.  On 2 April 1986, the applicant was counseled for failing to repair and missing the unit's first formation of the day at 0600 hours and for failing to report for duty after training.

27.  On 11 April 1986, the applicant was counseled for failing to following instructions to clear his room in the barracks on 28 March 1986.

28.  On 15 April 1986, the applicant was counseled for failing to repair to the unit's first formation of the day on 11 and 14 March 1986.

29.  On 16 April 1986, the applicant was counseled for failing to repair to the shop area after being "released from the jump."

30.  On 7 May 1986, the applicant was counseled for failing to repair to the shop area after the unit's 0615 hours formation.

31.  On 23 April 1986, the applicant received nonjudicial punishment under the provisions of Article 15 of the UCMJ for willfully disobeying the orders of a noncommissioned officer on 31 March 1986 and for stealing a pair of combat boots from another Soldier.  The punishment imposed was a reduction to the rank of SP4 and a forfeiture of $495.00 per month for two months (one month's forfeiture suspended for one month).  The applicant did not appeal the punishment.

32.  On 7 May 1986, the applicant was counseled for failing to repair to the shop area after the unit's 1300 hours formation.

33.  On 12 May 1986, the applicant was counseled for failing to report to his place of work from 0900 until 1300 hours.

34.  On 14 May 1986, the applicant was counseled for failing to show up for hallway cleanup on the mornings of 5, 6, 7, 8, 9, and 13 May 1986.

35.  On 14 May 1986, the applicant was counseled for failing to show up for the hallway cleanup on the mornings of 14 May 1986.

36.  On 18 June 1986, the applicant was counseled by his unit commander that he was considering discharging him from the service under the provisions of Army Regulation 635-200, chapter 14.

37.  On 18 June 1986, the applicant received nonjudicial punishment under the provisions of Article 15 of the UCMJ for absenting himself from his appointed place of duty on 7 May 1986 and on 12 May 1986.  The punishment imposed was a reduction to the rank of private first class (PFC)/E-3 and 14 days extra duty.  The applicant did not appeal the punishment.

38.  On 25 June 1986, the applicant was counseled for failing to repair for his extra duty on 20 and on 24 June 1986.

39.  On 7 July 1986, the applicant was counseled for being absent from his unit on 3 July 1986.

40.  On 21 July 1986, the applicant received nonjudicial punishment under the provisions of Article 15 of the UCMJ for absenting himself from his unit on 3 July 1986 and remaining so absent until 4 July 1986.  The punishment imposed was a reduction to the rank of private (PV2)/E-2.  The applicant did not appeal the punishment.

41.  On 4 August 1986, the applicant underwent a mental status evaluation.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or effect was flat, his thinking process was clear, his thought content was normal, and his memory was good.  The evaluating psychiatrist, an Army Medical Corps officer, found him to be mentally responsible and to have the mental capacity to understand and participate in proceedings.  Based on this mental status evaluation, the psychiatrist cleared the applicant for any administrative action deemed appropriate by command.  The evaluator additionally made a statement that retention of the individual would likely create additional management problems for the commander and recommended he be administratively discharged.

42.  On 18 August 1986, the applicant was counseled that his unit commander was considering discharging him from the service, that he was to bring his TA-50 to the supply room for a 100 percent inventory on 19 August 1986; and that he was to take a medical examination on 20 August 1986.

43.  On 6 October 1986, the applicant was counseled by his unit commander that he was initiating action to discharge him from the service for his pattern of misconduct.

44.  Each time the applicant was counseled by a member of his chain of command, a DA Form 4856-R (Statement of Counseling or a General Counseling Form) was prepared to document this counseling.

45.  On 6 October 1986, the applicant's unit commander notified him that he was initiating action to discharge him from the Army under the provision of Army Regulation 635-200, chapter 14, paragraph 14-12b, for a pattern of misconduct:  larceny, dereliction of duty, failure to repair, disobeying orders, and for having numerous counseling statements.  The applicant's unit commander notified him of his rights and advised him he was recommending he receive a general, under honorable, discharge.  The applicant acknowledged the notification on the same date.

46.  On 13 October 1986, the applicant consulted with counsel and was fully advised of the basis for the contemplated action to accomplish his separation for a pattern of misconduct under the provisions of Army Regulation 635-200, chapter 14.  The applicant was afforded the opportunity to provide a statement in his own behalf and did so.  The applicant waived consideration of his case by a board of officers and a personal appearance before a board of officers.  In his acknowledgement, the applicant further stated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  

47.  In his statement, the applicant stated he felt he deserved to receive an honorable discharge because he had over 5 years of good military service.  The problems he had were of a personal nature and he had tried to resolve them and was still working on them.  Since he had been working on his problems he had straightened up and had not been messing up - missing formations, taking off from work, and those such things.  For these reasons, he summarized he felt he deserved an honorable discharge.

48.  On 13 October 1986, the applicant's unit commander recommended that the applicant be separated from the service under the provisions of Army Regulation 635-200, chapter 14, Section III, for misconduct.  In his recommendation, the commander stated that since his assignment to the unit, the applicant's performance had been unsatisfactory and he was a handicap to the unit and to the Army.  The unit commander requested that a rehabilitative transfer be waived 

because his performance of duty had been so far below standards.  He had been counseled but to no avail.  In his judgment, transfer of the applicant would not serve to clear up his problems or produce a quality Soldier.  After reviewing the Soldier's history, adverse impact on the unit's morale and discipline, he recommended the applicant's service be characterized as honorable.

49.  On 17 October 1986, the applicant's battalion commander recommended approval of his separation and further recommended that he be issued a General Discharge Certificate.

50.  The applicant's discharge was approved by the 82nd Airborne Division Support Command commander on 29 October 1986.  The request for a waiver of the applicant's rehabilitative transfer was approved and it was directed that he be discharged with a general, under honorable conditions discharge and that he not be transferred to the Individual Ready Reserve.

51.  The applicant was discharged with a general, under honorable conditions discharge in the rank and pay grade of Private (PV2)/E-2 on 13 November 1986, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for  Misconduct - Pattern of Misconduct.  On the date of his discharge, the applicant had completed 6 years, 7 months, and 23 days active duty service, with time lost from 21 October 1986 through 23 October 1986.

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

53.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, then in effect, established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary 
infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

54.  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.



DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The evidence of record shows that the applicant served successfully for a time during his service.  He volunteered for and completed airborne training and was awarded the Parachutist Badge.  He was promoted to the rank and pay grade of SP5/E-5 and was laterally appointed to the rank of SGT.

3.  The evidence of record shows the applicant developed a pattern of misconduct and in addition allowed his performance to deteriorate even though it is apparent the unit gave him every opportunity to succeed.  The applicant subjected himself to and received non-judicial punishment four times, was barred from reenlistment, and was counseled over thirty-five times, many for multiple offenses and on some days, he was counseled more than once in a day.

4.  The applicant was given a mental status evaluation and he was found to be mentally responsible and to have the mental capacity to understand and participate in proceedings.  The evaluating psychiatrist cleared the applicant for any administrative action deemed appropriate by command and in his summary made a statement that retention of the individual would likely create additional management problems for the commander and recommended he be administratively discharged.

5.  The evidence shows that the applicant was notified by his unit commander of the reasons for the recommendation for his discharge and he acknowledged the same.  In addition, the applicant was provided legal counsel and not only were his rights explained to him by counsel but the reasons for his intended discharge were 
also fully explained to him by counsel.  The applicant was given an opportunity to provide a statement in his own behalf and he did so.  In his statement, the applicant did not explain the reasons for his misconduct but stated he was working on his problems and in addition stated he felt he deserved an honorable discharge since he had over 5 years of good military service.

6.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The reason for discharge and the characterization of service are both proper and equitable.  The quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his general, under honorable conditions discharge to a fully honorable discharge.
7.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his general, under honorable conditions discharge to a fully honorable discharge.

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)                                         AR20080018155



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018155



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1