IN THE CASE OF:	

		BOARD DATE:	       9 APRIL 2009

		DOCKET NUMBER:  AR20090000847 


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 honorable.

2.  The applicant states that he believes that his entire military service should be taken into consideration.  He offers that he served his country very honorably and deserves an honorable discharge.

3.  The applicant provides no additional documents 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.  The applicant’s record shows he enlisted in the Regular Army and entered active duty on 12 June 1981.  He was trained in, awarded, and served in military occupational specialty 45G (Fire Control Systems Repairer).

3.  On 5 May 1988, the company commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 
635-200 (Personnel Separations), chapter 13, paragraph 2-5, for unsatisfactory performance.  He cited the applicant's continuous failure to meet the Army Physical Readiness Standards and other low standards as a noncommissioned officer (NCO) as justification for the separation.  Additionally, the company commander said the applicant's record of previous performance reflected conduct unbecoming of an NCO.  He explained that the applicant's relief from his position and producing a firearm in a heated argument established patterns of unsatisfactory performance.  The commander recommended that the applicant receive a general discharge under honorable conditions.

4.  On 13 May 1988, the company commander recommended that the applicant be discharged from the Army under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-2.  Although he acknowledged that the applicant had not received any disciplinary actions or nonjudicial punishment, he attached eight records of counseling to support his recommendation.

5.  On 16 May 1988, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects and the rights available to him, he voluntarily waived consideration of his case by an administrative board contingent upon him receiving a characterization of service or description of separation no less favorable than a general discharge.  The applicant elected not to submit statements on his behalf.

6.  The applicant acknowledged that he was making the request (for a conditional waiver) under his own free will and that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued.  He further acknowledged that if he received a discharge certificate/character of service which was less than honorable, he may make an application to the Army Discharge Review Board or the ABCMR for upgrading.  However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  The applicant also understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

7.  On 20 April 1988, the applicant underwent a mental status evaluation in which he was found to be psychiatrically cleared for any administrative action deemed appropriate by the command.

8.  On 17 May 1988, the lieutenant colonel in command of the 601st Ordnance Battalion, U.S. Army Ordnance Center and School, Aberdeen Proving Ground, Maryland, recommended that the applicant receive a general discharge.  He said the applicant failed three record Army Physical Fitness Tests.

9.  On 25 May 1988, the colonel in command of the 61st Ordnance Brigade, U.S. Army Ordnance Center and School, Aberdeen Proving Ground, Maryland, approved the applicant’s discharge under the provisions of Army Regulation  635-200, chapter 13, paragraph 13-2.  He directed that the applicant be furnished a General Discharge Certificate.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged with a characterization of service of under honorable conditions on 7 June 1988.  The applicant had completed 6 years, 11 months, and 26 days of creditable service.

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

12.  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 for unsatisfactory performance.  Paragraph 13-2 of the regulation, in pertinent part, requires that separation action will be taken as follows:  (1) 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; (2) it is likely that the circumstances forming the basis for initiation of separation proceeding will continue or recur; and (3) the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions.

13.  Paragraph 3-7a of the same regulation 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.

14.  Army Regulation 635-200, 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 argues that his entire military service should be taken into consideration and thereby "justifying" a discharge upgrade.  The chapter 13 proceedings verified that the applicant waived his right to consideration of his case by an administrative board contingent upon him receiving a general discharge.  He also elected not to submit statements on his behalf.

2.  Although the applicant's record did not contain any disciplinary actions or records of nonjudicial punishment, he had eight counseling statements in his chapter 13 packet.  One counseling statement verified his relief from his position and another counseling concerned him producing a firearm in a heated argument.  Such conduct warranted separation and the characterization of service he received.

3.  The applicant has failed to provide evidence to prove that the 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.

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)                                         AR20090000847



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ABCMR Record of Proceedings (cont)                                         AR20090000847



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