IN THE CASE OF:	

		BOARD DATE:	       6 January 2009

		DOCKET NUMBER:  AR20080017119 


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 1986 discharge be upgraded to fully honorable.

2.  The applicant states, in effect, that his separation document is wrong and maintains that the character of his discharge was upgraded sometime between 1990 and 1998.

3.  The applicant provides no 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 entered active duty as an enlisted Soldier on 28 March 1985.  He successfully completed training in the supply field prior to being assigned to a Field Artillery unit in Germany in August 1985.  In September 1985 he was promoted to the grade of private (E-2).

3.  The applicant's records show he was counseled on six different occasions between December 1985 and May 1986 for such issues as poor job performance, lack of motivation and self discipline, being disrespectful and causing a disturbance.  He was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) in February 1986 and twice in May 1986.  The basis for the UCMJ actions included being drunk and disorderly, disobeying an order, and failing to go to his place of duty.  By May 1986 he had been reduced to pay grade E-1.

4.  In June 1986 a local bar to reenlistment was imposed.

5.  In July 1986, in conjunction with a contemplated separation action, the applicant's commander reviewed the imposed bar to reenlistment.  Based on the review the applicant's commander recommended the bar not be removed.  The unit commander also recommended the applicant not receive the Army Good Conduct Medal.

6.  On 14 July 1986 the applicant’s commander initiated a recommendation to separate him from the service under the provisions of Army Regulation
635-200, paragraph 13-2a(6), for unsatisfactory performance.  The applicant was informed that the least favorable characterization of service he could receive was "under honorable conditions."

7.  The applicant acknowledged receipt of the proposed separation and waived his right to consult with counsel.  He elected not to make a statement in his own behalf.

8.  The appropriate authority approved the separation recommendation and directed the applicant be issued a General Discharge Certificate and transferred to the United States Army Reserve to complete his statutory service obligation.  Accordingly, he was released from active duty under honorable conditions on     8 August 1986.  He had completed 1 year, 4 months, and 11 days of creditable active service.  His terminal date for completion of his United States Army Reserve obligation was determined to be 27 March 1993.



9.  On 23 March 1993 orders were issued by the United States Army Reserve Personnel Center discharging the applicant from the Ready Reserve effective 
23 March 1993.  The type of discharge reflected on those orders was "honorable."

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his characterization of service within its 15-year statute of limitations

11.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Paragraph 13-2a provides for the separation of a Soldier for unsatisfactory performance when it is clearly established that the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier, or the seriousness of the circumstances is such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale, and it is likely that the Soldier will be a disruptive influence in present or future duty assignments, that the circumstances forming the basis for initiation of separation proceedings will continue or recur, and the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely.  The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.  It is possible the applicant believed his honorable discharge from the United States Army Reserve in 1993 was an indication that the character of his 1986 release from active duty had been upgraded.  The characterization of his 1993 discharge from the United States Army Reserve has no impact on the characterization of his service at the time he was released from active duty in 1986.

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080017119



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ABCMR Record of Proceedings (cont)                                         AR20080017119



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