IN THE CASE OF:	  

		BOARD DATE:	       24 March 2009

		DOCKET NUMBER:  AR20090000399 


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 he received one nonjudicial punishment for disobeying a direct order.  This was the only time he got into trouble and was unfairly discharged because of it.  He was told by an Army veteran that his discharge was unjust.  He strongly feels that he should not have been discharged because of just one infraction.  He was 19 years of age at the time of discharge and believes he should have been informed of other ways to handle the situation.  He truly believes he was misled.

3.  The applicant provides no documentation 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.

3.  On 28 August 1985, the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) for 8 years, beginning in the rank of private first class (PFC), pay grade E-3.  He was born on 9 September 1967 and had completed 3 years in the Junior Reserve Officers' Training Corps (JROTC) program.

4.  On 29 August 1985, the applicant was discharged from the DEP and on 
30 August 1985, the applicant enlisted in the Regular Army (RA) for 3 years.  He successfully completed his initial training and was awarded military occupational specialty (MOS) 13B (Cannon Crewman).

5.  On 3 January 1986, the applicant was assigned to the 5th Battalion, 8th Field Artillery Regiment at Fort Bragg, North Carolina.

6.  The applicant received the following performance counseling:

	a.  28 April 1986:  Absent from his place of duty on 18 and 28 April 1986.

	b.  17 June 1986: Absent from his place of duty.

	c.  30 June 1986:  Monthly performance counseling stated that while his appearance was above average, he was lacking in initiative and motivation.  His attitude and discipline was only fair.

7.  On 30 July 1986, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for stealing personal property of another Soldier valued at $50.00 or more.  The punishment included reduction to pay grade E2 and a forfeiture of $358.00 pay per month for 2 months (suspended).

8.  On 14 September 1986, the applicant's commander counseled him regarding the following:

	a.  Child maltreatment or mistreatment, two offenses, 30 June and 
2 September 1986;

	b.  Cited for speeding, 9 June 1986; and 

   
   c.  Larceny of private property over $50.00 and receipt of NJP, 15 July 1986.

9.  On or about 19 September 1986, the applicant failed to report for charge of quarters duty.  Consequently, the suspended portion of his NJP was vacated on 24 September 1986.

10.  On 24 September 1986, a medical examination found him to be qualified for separation with a physical profile of 111111.  The examination indicates that he was recommended for further examination by optometry.  At a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable 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.

11.  On 6 October 1986, the applicant’s commander initiated a recommendation to separate him from the service under the provisions of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, for unsatisfactory performance.  The commander stated that there appeared to be no grounds for any other disposition because he was a constant problem.  The applicant's lack of motivation and poor attitude caused the unit mission to falter, warranting his separation.

12.  On 6 October 1986, the applicant consulted with counsel, and elected not to make a statement in his own behalf.

13.  On 6 October 1986, the appropriate authority approved the recommendation for release from active duty (REFRAD) and directed that he be issued a General Discharge Certificate.  He further directed that the applicant be transferred to the Individual Ready Reserve.

14.  Accordingly, he was REFRAD under honorable conditions on 28 October 1986 and transferred to the USAR Control Group (Reinforcement) to complete his remaining Reserve obligation.  He had completed 1 year, 1 month and
29 days of creditable active service.

15. 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.



16.  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.

17.  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 his discharge was unfair because he only got into trouble once when he disobeyed a direct order.

2.  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.

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

4.  The applicant implies that his young age at the time was a contributing factor. This is not sufficiently convincing.  Evidence shows that he had 3 years of JROTC training during high school and he should have had a very clear understanding of his military duties and responsibilities.  Also, he was counseled numerous times for minor infractions.

5.  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.

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)                                         AR20090000399



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ABCMR Record of Proceedings (cont)                                         AR20090000399



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