IN THE CASE OF:	  

		BOARD DATE:	       16 JUNE 2009

		DOCKET NUMBER:  AR20090001665 


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 an honorable discharge.

2.  The applicant states, in effect, that he followed orders and fulfilled his obligations by performing the duties he was assigned during his tenure in the Army.  The applicant also states that he was awarded the Good Conduct Medal in recognition of his service.

3.  The applicant provides no documentary evidence 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 record shows he enlisted in the United States Army under the Delayed Entry Program on 18 June 1985 and enlisted in the Regular Army on 4 November 1985.  He completed basic combat training and advanced individual training.  Upon completion of advanced individual training, he was awarded military occupational specialty (MOS) 62E (Heavy Construction Equipment Operator).  The highest rank he attained while serving on active duty was the rank of specialist (SPC)/pay grade E-4.  However, at the time of separation he held the rank of private first class (PFC)/pay grade E-3.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for willfully disobeying a lawful order from a noncommis-sioned officer (twice) and for failing to report to his appointed place of duty at the prescribed time (twice).  The offenses for which the applicant was subjected to the aforementioned NJP occurred during the period of 15 December 1987 through 26 May 1989.

4.  The applicant's record also contains numerous DA Forms 4856 (General Counseling Forms) documenting adverse counseling sessions for several disciplinary infractions which occurred during the period of 24 February 1987 through 31 May 1989.  The applicant was counseled for:  missing numerous formations, missing work several times, damaging Government property, operating an uninsured privately owned vehicle, failing to finish an Army Physical Fitness Test, and parking in an unauthorized area.

5.  United States Army Transportation Center, Fort Eustis, Virginia, Permanent Orders 193-1, dated 21 November 1988, awarded the applicant the Good Conduct Medal for exemplary behavior, efficiency, and fidelity during the period from 5 November 1985 to 4 November 1988.

6.  The applicant’s unit commander notified him, in effect, that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, paragraph 13-2, for unsatisfactory performance.  The unit commander also informed the applicant that he was recommending that the applicant receive a characterization of service of "general under honorable conditions."  The unit commander informed the applicant that the separation authority was not bound by his recommendation as to the characterization of service and may direct that his service be characterized as either "honorable" or "general under honorable conditions."  The unit commander informed the applicant that his proposed separation could result in discharge, release from active duty to a reserve component, or release from custody and control of the Army.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, to waive these rights in writing, and to withdraw his waiver of any of these rights at any time prior to the date the discharge authority directed or approved his separation.  

7.  On 19 July 1989, the commander noted that the applicant refused to acknowledge receipt of the unit commander's notification with his signature because he did not understand the content of the acknowledgement receipt and had four noncommissioned officers authenticate the document as witnesses.

8.  On 19 July 1989, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation, its effects, and the rights available to him.  The applicant was also informed that if he were issued a general discharge under honorable conditions, he could expect to encounter substantial prejudice in civilian life.  Following his consult with legal counsel, the applicant refused to sign the document which indicated his receipt of legal counseling and his understanding of the impact of the proposed discharge.

9.  On 28 July 1989, the applicant’s unit commander recommended that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-2, for unsatisfactory performance.  The unit comman-der stated that the applicant showed no desire or willingness to rehabilitate regardless of chain of command efforts.  He concluded that if discharged, the applicant clearly had no potential for useful service under conditions of full mobilization and recommended that he not be transferred to the Individual Ready Reserve.

10.  On 28 July 1989, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-2, and that his term of service be characterized as "general under honorable conditions."

11.  On 28 July 1989, the applicant was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time shows that he received an "Under Honorable Conditions" characterization of service.  Block 25 (Separation Authority) shows that he was discharged under the provisions of chapter 13 of Army Regulation 635-200.  Block 26 of this form shows he was assigned a Separation Program Designator code of "JHJ."  Block 28 (Narrative Reason for Separation) shows "Unsatisfactory Performance."

12.  On 9 May 1990, the applicant submitted a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB).  The applicant requested to have his general discharge upgraded to an honorable discharge based upon his allegation that he was wrongly accused of being suicidal.  The applicant did not mention that he did not understand the consequences of his discharge.  The applicant indicated that he wished to appear in person at a hearing before a Traveling Panel.

13.  On 22 September 1992, the applicant submitted a DD Form 293 to the ADRB, on which he annotated, in effect, that he had served his country well and contended that his offenses were not serious enough to warrant a general discharge with a service characterization of under honorable conditions.

14.  United States Army Reserve Personnel Center, Saint Louis, Missouri, letter, dated 19 January 1993, informed the applicant that the ADRB, after careful consideration of his records and all other available evidence, had determined that he was properly and equitably discharged.  Accordingly, the Secretary of the Army directed that the applicant be advised that his request for change in the character and/or reason of his discharge had been denied.

15.  Army Regulation 600-8-22 (Military Awards) provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  

16.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this 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 ability 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.


17.  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.

18.  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's contention that his general discharge should be upgraded to an honorable discharge was carefully considered and determined to lack merit.

2.  The record shows the applicant had multiple disciplinary infractions.  In spite of his indiscipline, the applicant's chain of command was willing to allow the applicant to remain on active duty and continue to serve.  Evidence shows the applicant was not responsive to the rehabilitative efforts of his command.

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable discharge or to have the narrative reason for separation changed.

5.  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 did not submit any evidence that would satisfy this requirement and there is no basis for granting his 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)                                         AR20090001665





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ABCMR Record of Proceedings (cont)                                         AR20090001665



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