IN THE CASE OF:	  

		BOARD DATE:	       19 May 2009

		DOCKET NUMBER:  AR20090000019 


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 his general discharge under honorable conditions be upgraded to honorable. 

2.  The applicant states, in effect, that at the time of his discharge he was very young and ill suited for military life.  However, he was a distinguished honor graduate from the Electronic Switching Repairer Course and he was awarded the corresponding military occupational specialty (MOS) of 36L.  He regrets some of the decisions that he made and now feels that he could have served his country better and would do so now if it were possible.

3.  The applicant provides no additional evidence in support of his application.

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.  On 6 June 1983, the applicant, with parental consent, enlisted in the Regular Army for 4 years.  He was 17 years, 10 months and 1 day of age at the time.  He completed basic combat training at Fort Jackson, South Carolina.  He was subsequently reassigned to Fort Gordon, Georgia, for training in MOS 36L.

3.  On 26 September 1983, the applicant was counseled for sleeping on guard duty.  He non-concurred with the counseling and contended that he had not been sleeping but was only sitting down.

4.  On 24 October 1983, the applicant was counseled for failing to report for battalion cleanup on 21 October 1983.  He concurred with the counseling.

5.  On 14 February 1984, the applicant was counseled for missing morning formation.  He was found asleep in his bunk and was disrespectful towards his platoon sergeant.  The applicant non-concurred with the counseling, stating, in effect, that he had been in the military for 9 months and was still adjusting to military life.  He felt that he did not have a bad attitude and could still help the Army.

6.  On 24 February 1984, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to report for morning formation.  The punishment included an oral reprimand and 
14 days of restriction and extra duty.

7.  On 9 March 1984, the applicant accepted NJP for disobeying a lawful order by failing to go to his appointed place of duty and by breaking restriction.  The punishment included a reduction to pay grade E1 (suspended for 45 days), a forfeiture of $139.00 pay per month for 1 month, and 14 days of restriction and extra duty.

8.  On 5 April 1984, the Army and Air Force Exchange Service sent the applicant a dishonored check notification.  His check for $60.00 was returned due to insufficient funds.  He acknowledged receipt of this notification on 20 April 1984.

9.  On 23 April 1984, the applicant was counseled for failing to report for physical training (PT) on 21 April 1984.  He non-concurred with the counseling, stating that he was at PT and stood in front of the formation in plain view.

10.  On 24 April 1984, the applicant was counseled by his company commander, who reminded the applicant of his five previous counseling sessions and his two NJP's.  The commander informed the applicant that his duty performance had not been compatible with Army customs and standards.  The applicant had failed to make significant improvement and as a result he was being recommended for separation in accordance with Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The applicant concurred with the counseling.

11.  On 25 April 1984, the applicant was awarded a diploma for being a distinguished graduate of the 24 week long Electronic Switching System Repairer Course.

12.  On 26 April 1984, the applicant underwent a psychiatric evaluation.  He was found to have no mental disease, disorder, or defect which warranted disposition through medical channels.  He was found to be responsible for his own actions.  The applicant appeared to have difficulty in conforming to the norms of military life.  There was no current evidence of thought disorder, emotional instability or pervasive character limitations.  He primarily appeared to be unmotivated.  

13.  On 30 April 1984, a medical examination found him to be qualified for separation with a physical profile of 1-1-1-1-1-1.  On the same day, a mental status evaluation found the applicant's behavior was normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

14.  On 7 May 1984, the applicant’s commander initiated a recommendation to discharge him from the service under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance.  The commander cited the applicant's previous counseling for unsatisfactory performance and stated that all attempts to counsel and rehabilitate him had failed.

15.  On 10 May 1984, the applicant consulted with counsel, elected to make a statement in his own behalf, and did not waive any of his rights.  In his statement, he acknowledged his difficulty with adjusting to military life and contended that those problems were a thing of the past.  He stated that he realized the problems that he had encountered resulted from his own foolishness.  He asked that the commander recognize the positive things he accomplished during his short military service, such as his successful completion of basic training and his being an honor graduate of the Electronic Switching System Repairer Course.  He felt that he could benefit the Army with his knowledge in this technical field.  He thought the Army was an outstanding organization and wanted very much to be a part of it.



16.  On 21 May 1984, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate.  

17.  Accordingly, the applicant was discharged under honorable conditions on 
24 May 1984.  He had completed 11 months and 19 days of creditable active duty service.

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

19.  Army Regulation 635-200 sets forth the basic authority for the 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.

20.  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 contends that he was very young at the time and was ill suited for military life.  Hence, he feels that his discharge should be upgraded to fully honorable.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

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

4.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was 17 years and 10 months of age at the time of his enlistment.  He successfully completed the basic combat training course and was a distinguished honor graduate of the Electronic Switching System Repairer Course.  This satisfactory performance demonstrated his capacity to serve and shows that he was neither too young nor immature.

5.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

6.  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.




      _______ _   _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)                                         AR20090000019



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ABCMR Record of Proceedings (cont)                                         AR20090000019



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