IN THE CASE OF:	  

		BOARD DATE:	        9 JULY 2009

		DOCKET NUMBER:  AR20090000658 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states, in effect, when he was in the Army he was young and did not have any idea what he wanted out of life.  He also states that since his discharge he now has a wife and two young boys, he is currently attending a two-year technical college, and he is scheduled to graduate in June 2010.  The applicant concludes by stating he wishes that he would have been as focused on doing the right thing then, as he is now.

3.  The applicant provides, in support of his application, a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 21 November 2008.

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 enlisted in the U.S. Army Reserve (USAR) for a period of
6 years on 3 April 1984 in the Delayed Entry Program, he was discharged from the USAR on 17 April 1984, and enlisted in the Regular Army on 18 April 1984 for a period of 3 years.  Records show the applicant was 21 years of age at the time of his enlistment.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 57F (Graves Registration Specialist).  The highest grade the applicant attained was private/ pay grade E-2.

3.  On 5 April 1985, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of a controlled substance.  The punishment consisted of reduction to the grade of private/pay grade E-1 (suspended until 5 September 1985), forfeiture of $162.00 (suspended $81.00 for two months until 5 June 1985), 14 days of extra duty, and 14 days of restriction.

4.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 28 May1985, and Headquarters, 530th Supply and Service Battalion, Fort Bragg, North Carolina, 1st endorsement, dated 30 May 1985, subject:  Bar to Reenlistment, show that the battalion commander approved a bar to reenlistment on the applicant.  The reason for the action was the applicant showed positive results for marihuana/ THC on a urinalysis test administered on 21 February 1985.

5.  On 4 June 1985, the suspension of the punishment of reduction to the grade of private/pay grade E-1 and forfeiture of $162.00 imposed on 5 April 1985 was vacated by the commander based on the applicant's failure to go at the prescribed time to his appointed place of duty.

6.  On 19 July 1985, the applicant received another NJP under Article 15, UCMJ, for absence without leave (four specifications).  The punishment consisted of forfeiture of $310.00 pay per month for two months, 45 days of extra duty, and
45 days of restriction.

7.  On 26 July 1985, the company commander notified the applicant that separation action was being initiated on him due to unsatisfactory performance. The letter of notification shows that the applicant was advised of his rights.  The company commander also advised the applicant he may receive a general or honorable discharge certificate as a result of the action.

8.  On 5 August 1985, the applicant acknowledged with his signature that he had been advised by consulting counsel of the basis for the contemplated action to separate him from the Army for unsatisfactory performance and elected not to submit statements in his own behalf.  He acknowledged he understood that because he would have less than six years active and/or reserve military service at the time of separation, he was not entitled to have his case heard by an administrative separation board. The applicant also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him.  He further indicated that he understood he would be ineligible to apply for enlistment in the U.S. Army for a minimum period of 2 years after discharge.  The applicant’s legal counsel also affixed his signature to the document.

9.  On 5 August 1985, the applicant’s company commander recommended the applicant's separation from service under the provisions of Army Regulation
635-200 (Enlisted Personnel - Enlisted Separations), chapter 13 (Separation for Unsatisfactory Performance), paragraph 13-2a, for unsatisfactory performance and forwarded the separation action through the chain of command to the approving authority.  The basis for the company commander’s recommended action was the applicant’s apathy, inability to follow command directives, positive results on his urinalysis test, bar to reenlistment for unsatisfactory performance, numerous derogatory counseling statements, and NJP under Article 15, UCMJ.  The commander also requested that rehabilitation transfer requirements be waived because the applicant did not possess the potential to become the quality Soldier desired by the U.S. Army.

10.  On 5 August 1985, the separation authority approved waiver of the applicant’s rehabilitative transfer; approved the discharge under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-2a; and directed the applicant be issued a General Discharge Certificate.

11.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 18 April 1984 and was discharged on 14 August 1985 with a general (under honorable conditions) discharge, under the provisions of Army Regulation 635-200 chapter 13, based on unsatisfactory performance.  At the time he had completed 1 year, 2 months, and 2 days of net active service.  The DD Form 214 shows he had a total of 56 days of time lost.

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

13.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of the regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the inability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

14.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his general discharge under honorable conditions should be upgraded to an honorable discharge because he was young and did not have any idea what he wanted out of life.  He also contends that he is now a responsible family man and college student.

2.  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 had satisfactorily completed training, had served for over one year, and he was
22 years of age before any negative incidents are documented.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

3.  The applicant's administrative discharge was accomplished in compliance with applicable regulations and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  The applicant’s record of service clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  It was not sufficiently meritorious to warrant an honorable discharge.  Therefore, the applicant is not entitled to an honorable discharge.

5.  The applicant's contentions regarding his post-service conduct and personal responsibility were carefully considered.  However, his post-service conduct and personal responsibility do not outweigh the behavior that led to the discharge.  

6.  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.  Therefore, in view of all 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)                                         AR20090000658



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000658



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1