IN THE CASE OF:	  

		BOARD DATE:	       18 JUNE 2009

		DOCKET NUMBER:  AR20080018597 


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 that her discharge be upgraded from general under honorable conditions to an honorable discharge.

2.  The applicant states, in effect, that she was under the impression that her discharge was supposed to change to an honorable discharge after 6 months.

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the ending period 2 April 1991 and Military Entrance Processing Station Orders 8282005, dated 8 October 2008.

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 30 May 1989 and successfully completed basic training and advanced individual training.  She was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).

3.  The applicant's record reveals a disciplinary history that includes her acceptance of general counseling statements on the following dates:

	a.  12 January 1990 for failure to be at her appointed place of duty and disobeying a lawful order from a noncommissioned officer (NCO);

	b.  12 February 1990 for disobeying a lawful order from an NCO;

	c.  16 February 1990 for being late for physical training formation and motor pool formation;

	d.  26 February 1990 for poor duty performance;

	e.  17 April 1990 for missing barracks detail;

	f.  19 April 1990 for failure to be in the proper duty uniform;

	g.  30 April 1990 for failure to be in the proper uniform and for a poor attitude;

	h.  1 May 1990 for poor duty performance;

	i.  26 June 1990 for failure to polish her boots;

	j.  29 June 1990 for failure to be at her appointed place of duty;

	k.  1 July 1990 for having a poor attitude;

	l.  6 August 1990 for failure to be in the proper duty uniform and for failing to be at her appointed place of duty;

	m.  7 September 1990 for failure to be at her appointed place of duty; and 

	n.  11 September 1990 for disobeying a lawful order from an NCO and being derelict in the performance of duties.

4.  On 6 November 1990, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to be at her appointed place of duty.

5.  The applicant's record includes additional disciplinary general counseling statements she received on the following dates:

	a.  10 December 1990 for failure to be at her appointed place of duty;

	b.  8 January 1991 for having a verbal confrontation;

	c.  9 January 1991 for failure to secure her tool box; and

	d.  14 January 1991 for failure to obey a lawful order from an NCO.

6.  On 15 February 1991, the applicant accepted NJP under Article 15, UCMJ, for stealing property from the Army and Air Force Exchange Service (AAFES).

7.  On 7 March 1991, the applicant’s commander signed an elimination packet and a waiver of rehabilitative transfer on the applicant for separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unsatisfactory performance.  The reason cited by the commander was the applicant's failure to appear at required formations on several occasions, she committed larceny at the AAFES, she failed her skill qualification test, and she frequently failed to obey lawful orders from her superiors.

8.  11 March 1991, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that she was advised she was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13.  The applicant requested counsel and elected to submit a statement on her own behalf; however, no statement is available.

9.  On 14 March 1991, the appropriate authority approved the elimination packet and waiver of the rehabilitative transfer recommendation and directed the applicant receive a general under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  On 2 April 1991, the applicant separated from the service after completing 1 year, 10 months, and 3 days of creditable active service with no days lost.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of that regulation provides, in pertinent part, that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that, in the commander’s judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

11.  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.

12.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that she was under the impression that her discharge was supposed to change to an honorable discharge after 6 months, there is no policy or regulation within the Army which allows automatic upgrading of discharges.  

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize her rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's records show that she received two Article 15s and had numerous negative counselings.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an 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.



      ____________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)                                         AR20080018597



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018597



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1