IN THE CASE OF:	

		BOARD DATE:	23 June 2009  

		DOCKET NUMBER:  AR20090000775 


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 a fully honorable discharge.

2.  The applicant states, in effect, that when he was in the Army, he was never told his performance was substandard.  He states that he had only two incidents in his record and they both were due to misunderstandings.  He states that one was not reporting to work for 1 hour and 45 minutes prior to a mandatory appointment, which he spoke with his senior noncommissioned officer about; and the second was when he was legally on leave and robbed.  He states that after calling the police he went to the closest base and was issued a legal provisional pass so he would not be in an absent without leave (AWOL) status.  He states that his pay was all “messed up,” he was driving home to Fort Bragg, and the $46.00 which was issued was not enough to get back, so he had to borrow money.  He states that he had no prior reprimands; therefore, he believes he is entitled to an honorable discharge.

3.  The applicant provides in support of his application a copy of a Provisional Pass dated 21 February 1984; an undated copy of a Request for Return to Duty Order; a copy of a letter from a Finance and Accounting Officer, dated 
2 February 1984; a copy of his Leave and Earnings Statement for the period covering 1 February through 29 February 1984; and an undated, 



unaddressed letter pertaining to documents that he contends he sent to a place which is unable to be determined based on the information contained in document.  This letter also provides the applicant’s home telephone number and his cellular telephone number.

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 7 July 1983, the applicant enlisted in the Regular Army in Miami, Florida, for 3 years, in the pay grade of E-2.  He successfully completed his training as a food service specialist.

3.  On 5 March 1984, the applicant was counseled for being AWOL from 22 February 1984 through 3 March 1984 and for missing movement on 
23 February 198.  The applicant was counseled concerning his obligations as a Soldier, he was advised that being AWOL was a serious offense punishable by court-martial.  He was advised that since his arrival in the unit, he had consistently demonstrated poor judgment and had been verbally counseled about financial matters.  The applicant was advised that it was clear he did not display the maturity level of a Soldier and that he was being recommended to receive nonjudicial punishment under the Uniform Code of Military Justice.  He was also advised that any further misconduct on his part would be justification for elimination under the provisions of Army Regulation 635-200 and that he could receive an honorable, a less than honorable, or a general discharge. 

4.  Nonjudicial punishment (NJP) was imposed against the applicant on 16 March 1984, for being AWOL from 22 February until 3 March 1984.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay in the amount of $100.00 per month for 2 months, extra duty for 14 days, and restriction for 
14 days.

5.  The applicant indicated that he was submitting an appeal to the NJP and that he was submitting additional matters.  However, after consideration of all matters, the commanding general denied his appeal.

6.  On 22 May 1984, the applicant was counseled for failure to report for duty on 21 May 1984.  According to the record of counseling, the applicant was absent from duty for 2 and 1/2 hours and it was not the first time that he failed to perform his duties in the dining facility.  He was advised that he was being referred to the first sergeant for further action and that he spent more time trying to get out of work than he did actually doing the work.

7.  On 22 May 1984, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The commander stated that the applicant’s performance of duty and general conduct illustrated a lack of desirable qualities that are required of a Soldier.  The commander also stated that his actions brought discredit on the Armed Forces of the United States.

8.  The applicant acknowledged receipt of the notification on 24 May 1984 and he opted not to submit a statement in his own behalf.

9.  The appropriate authority approved the recommendation for discharge on 26 June 1984 and directed the issuance of a General Discharge Certificate.  Accordingly, on 26 June 1984, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance.  He had completed 11 months and 9 days of net active service and he had approximately 10 days of lost time due to being AWOL.  He was furnished a General Discharge Certificate.

10.  A review of the applicant’s records does not show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200 (Enlisted Personnel) 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. 


12.  Paragraph 3-7a of Army Regulation 635-200 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.  

13.  Paragraph 3-7b provides 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, in effect, that his general discharge should be upgraded based on his overall record of service as the events that led to his discharge were misunderstandings and that he was never advised that his performance was substandard.

2.  The applicant’s contentions were considered along with the documentation that he submitted in support of his application.  However, his contentions are not substantiated by the evidence of record.  His records show that he was advised on several occasions that his performance was substandard.  He was counseled and NJP was imposed against him as a result of acts of indiscipline. 

3.  The applicant’s records show that during a counseling session, he was advised that he spent more time trying to avoid work than he did actually working and that he had been counseled on more than one occasion for being absent from his place of duty.  The applicant was also advised that his performance of duty and conduct lacked the qualities that were required of a Soldier.  Therefore, the applicant has failed to establish a basis for the upgrade of his discharge.

4.  In order to justify correction of a military record the applicant must show 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.

5. 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)                                         AR20090000775



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ABCMR Record of Proceedings (cont)                                         AR20090000775



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