IN THE CASE OF:	  

		BOARD DATE:	        16 APRIL 2009

		DOCKET NUMBER:  AR20090000260 


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 discharge be upgraded to an honorable discharge, and that his narrative reason for separation be changed from unsatisfactory performance. 

2.  The applicant believes he should have been retrained into a different military occupational specialty (MOS) or given an honorable discharge since he was unable to perform in his MOS.  He also contends that he did not have a mechanical aptitude for MOS 63B (Light Wheel Vehicle Mechanic).

3.  The applicant provides an additional DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in support of this 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.  The applicant's military records show that he enlisted in the Regular Army on 7 February 1984 for the U.S. Army Training of Choice Enlistment Option for training in MOS 63B.  He completed basic combat and advanced individual training and was awarded MOS 63B.  He was then reassigned to Fort Polk, Louisiana in July 1984 and assigned to Headquarters and Headquarters Company, 3rd Battalion, 70th Armor.  

3.  Between 15 December 1985 and 2 April 1986, the applicant was counseled on eight occasions for his below average and unacceptable job performance, military appearance and courtesy, discipline and behavior, dependability, maturity, physical readiness, and self-improvement.  These counselings also indicated that the applicant's performance and appearance had dropped to the lowest of standards and that he indicated that he wanted out of the Army.  They also indicated that the applicant would be sent to the chaplain to talk with him, and that one of his noncommissioned officers had already made those arrangements.  Additionally, they show that the applicant showed up late for formations, had no desire to work, had failed his physical fitness test, and was not mature or responsible enough to maintain his personal hygiene.   

4.  On 27 March 1986, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for absenting himself from his unit on or about 4 March 1986 with the intent to avoid field exercises and remaining so absent until on or about 7 March 1986.  His punishment consisted of a suspended reduction in rank/grade from private first class (PFC)/E-3 to private (PV2)/E-2, forfeiture of $167.00, and 14 days of extra duty and restriction.

5.  On 19 March 1986, a mental status evaluation was conducted on the applicant, and he was cleared for any administrative action deemed appropriate by his command.  He was also given a physical examination on 3 April 1986 and found medically qualified for separation.

6.  On 11 April 1986, the applicant’s commanding officer informed him that he was initiating action to separate him under the provisions of chapter 13 (Separation for Unsatisfactory Performance), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The applicant was also advised of his rights.

7.  On 15 April 1986, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for unsatisfactory performance under the provisions of chapter 13, Army Regulation 635-200, and its effects; of the rights available to him, and the effect of any action taken by him in waiving his rights.  He elected not to submit statements in his own behalf, and appears to have waived counsel.  He also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  

8.  On 22 April 1986, the proper separation authority approved the applicant’s elimination under the provisions of chapter 13, Army Regulation 635-200 for unsatisfactory performance, and determined that he would not be retained in the Individual Ready Reserve.  He also directed that the applicant be furnished a General Discharge Certificate and waived the requirement for a rehabilitative transfer.  On 25 April 1986, the applicant was discharged accordingly.

9.  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.

10.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to inaptitude, personality disorder, apathy, and homosexuality.  The regulation requires that separation action will be taken when, in the commander’s judgment, the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions.

11.  Army Regulation 635-200, paragraph 3-7a provides, in pertinent part, 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.  Army Regulation 635-200, paragraph 3-7b provides, in pertinent part, that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge and that his narrative reason for separation should be changed from unsatisfactory performance. 

2.  The applicant's contention that he did not have a mechanical aptitude was considered, but found to lack merit.  The applicant enlisted for training in MOS 63B after being offered this training based upon him meeting or exceeding the required Mechanical Maintenance (MM) score on the Armed Services Vocational Aptitude Battery, and he successfully completed advanced individual training in MOS 63B.  

3.  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.

4.  The evidence of record clearly shows that the applicant was repeatedly counseled for multiple deficiencies and that he accepted NJP under Article 15 of the UCMJ for absenting himself from his unit on or about 4 March 1986 with the intent to avoid field exercises, and remaining so absent until on or about 7 March 1986.  Given these instances of misconduct and inappropriate behavior, the applicant failed to provide evidence which proves that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

5.  The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

6.  The applicant's narrative reason for discharge was based on his separation under the provisions of chapter 13, Army Regulation 635-200 for unsatisfactory performance.  As a result, there is no basis for changing his narrative reason for separation.


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)                                         AR20090000260



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ABCMR Record of Proceedings (cont)                                         AR20090000260



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