IN THE CASE OF:	  

		BOARD DATE:	        18 FEBRUARY 2009

		DOCKET NUMBER:  AR20080019022 


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 1983 discharge under honorable conditions be upgraded to fully honorable. 

2.  The applicant states he received an Article 15 for being late for formation but there was no consideration given for the reason he was late.  He states he feels he was treated unfairly.  He states he was told at the time that he could upgrade his discharge and that he would still have all of his benefits “but this turned out not to be the case.”  He maintains he was misled.

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.  Records available to the Board indicate the applicant entered active duty as an enlisted Soldier on 10 March 1982.  Following completion of One Station Unit Training, he was assigned to Fort Campbell, Kentucky.  In September 1982, he was advanced to the rank of Private E-2 and subsequently advanced to the rank of Private First Class (PFC).

3.  In February 1983, the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty (morning formation on 17 February 1983).  According to the DA Form 2627 (Record of Proceeding under Article 15) he indicated that he, the applicant, would provide matters in defense, mitigation, and/or extenuation during a closed hearing.  The applicant’s punishment included reduction to pay grade E-2, which was suspended, and 14 days of restriction and extra duty.  The applicant appealed but did not submit any additional matters.  His appeal was denied.

4.  On 7 March 1983, the suspended reduction was vacated when the applicant again failed to report for a formation on 4 March 1983.

5.  On 9 March 1983, the applicant was punished under Article 15 of the UCMJ for failing to report for formation on 4 March 1983.  His punishment included reduction to pay grade E-1 and a forfeiture of $133.00 per month for one month.

6.  A Report of Mental Status Evaluation, dated 8 March 1983, shows the applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or affect was unremarkable, his thinking process was clear, and his thought content was normal.  The evaluating psychiatrist, a doctor of medicine, found him to be mentally responsible, and considered him to have the mental capacity to understand and participate in separation proceedings.  The applicant was psychiatrically cleared for administrative action as deemed appropriate by the command.

7.  On 15 March 1983, the applicant was notified of his unit commander’s intent to recommend him for elimination from the U.S. Army, under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance with a recommendation that he be issued a general discharge under honorable conditions.  The commander stated the reasons for the proposed recommendation were the applicant’s inability to adapt to military life, combined with his unwillingness to continue service in the Army and his problems complying with military regulations.  The commander noted the applicant had been counseled on this matter, had received Article 15s, and still displayed an apathetic, undisciplined approach to military service.

8.  On 16 March 1983, after consulting with counsel, the applicant acknowledged the proposed elimination action for unsatisfactory performance and waived his attendant rights, including the right to submit statements on his own behalf.  He also acknowledged he understood that he might be issued a general discharge under honorable conditions and that such a discharge may make him ineligible for many or all benefits as a veteran under both Federal and State laws.

9.  On 17 March 1983, the appropriate authority approved the applicant's separation and specified the issuance of a General Discharge Certificate.  

10.  The applicant was discharged, on 23 March 1983, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  His service was characterized as under honorable conditions.  He was credited with 1 year and 14 days of total active service.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contained the policy and outlined the procedures for separating individuals for unsatisfactory performance, to include separation for those individuals who fail to maintain Army physical standards.  The service of individuals separated because of unsatisfactory performance was characterized as honorable or under honorable conditions as warranted by their military records.

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.  

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant's two records of nonjudicial punishment and failure to conform to standards in spite of counseling by his unit leadership diminished the quality of his service below that meriting a fully honorable discharge. 

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with applicable regulations and the characterization of his service and the reasons therefore were appropriate, considering all the facts of the case.  His completion of training, advancement to the rank of PFC are indicators the applicant was fully capable of performing honorably.  He has provided no evidence nor shown that his unsatisfactory performance was related to him being treated unfairly.  He acknowledged in his separation processing that veterans benefits might be impacted if his service was characterized as under honorable conditions.

4.  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)                                         AR20080019022



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ABCMR Record of Proceedings (cont)                                         AR20080019022



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