IN THE CASE OF:	  

		BOARD DATE:	  21 May 2009

		DOCKET NUMBER:  AR20090002304 


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, an upgrade of his general, under honorable conditions discharge (GD) to an honorable discharge (HD).   

2.  The applicant states, in effect, there is no error or injustice related to his discharge, he would just like an upgrade of his discharge.   

3.  The applicant provides no documentary evidence 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 military record was not made available to the Board for review. However, the available evidence was sufficient to conduct a fair and impartial review of this case.  This case is being considered using a reconstructed record which primarily consists of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty).  

3.  There are no facts and circumstances related to the applicant's separation processing on file.  There is a properly constituted DD Form 214 that shows the applicant was discharged with a GD under the provisions of chapter 13, Army Regulation 635-200, by reason of unsatisfactory performance.  The DD Form 214 also shows the applicant held the rank of private (PV1)/E-1 on the date of his discharge, and that he had completed a total of 8 months and 21 days of active military service.  It further shows that during his active duty tenure, the applicant earned the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and Second Class Badge with Hand Grenade Bar.  No individual or service awards are listed on the DD Form 214.  

4.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.  

5.  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.  The separation authority may issue an HD or GD to Soldiers separated because of unsatisfactory performance as warranted by their military record.

6.  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.  

7.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered.  However, although the specific facts and circumstances surrounding the applicant's discharge processing are not available, the evidence does include a properly constituted DD Form 214 that identifies the authority and reason for the applicant's discharge, and there is a presumption of government regularity attached to this document.  

2.  By regulation, commanders will separate a member under chapter 13, Army Regulation 635-200, when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  

3.  The regulation further indicates that the service of Soldiers separated because of unsatisfactory performance will be characterized as honorable (HD) or under honorable conditions (GD) as warranted by their military record.  In this case, there is no evidence of and the applicant admits there is no error or injustice related to the applicant's separation processing.  Therefore, absent any evidence to the contrary, it is concluded the applicant's separation processing was accomplished in accordance with the applicable regulation.  Further, the 
DD Form 214 documents no acts of valor, significant achievement, or service warranting special recognition that would have supported the issue of an HD by the separation authority at the time of discharge, or that would support an upgrade at this time.  

4.  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.

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)                                         AR20090002304



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ABCMR Record of Proceedings (cont)                                         AR20090002304


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