IN THE CASE OF:	  

		BOARD DATE: 	        4 June 2009

		DOCKET NUMBER:  AR20090002622 


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 under honorable conditions be upgraded to an honorable discharge and that the narrative reason for separation be changed to support the fully honorable discharge.

2.  The applicant states, in effect, that he was an outstanding Soldier.  He was placed on a physical profile for a heel and ankle injury that he received during basic training.  The applicant also states that he did not have any problems until he reported to his permanent duty assignment and the new first sergeant arrived. The first sergeant did not accept his profile as legitimate and forced him to perform duties outside of his profile which caused personality clashes.

3.  The applicant states, in effect, that he received two disciplinary actions and both were unjust because he did not cause the problems.  During the first incident he was defending himself and during the second incident he reacted emotionally to the persistent inappropriate behavior of a senior non-commissioned officer (NCO).  The applicant states that the type of discharge that he received and the reason for discharge were both unjust in that his record was excellent until the new first sergeant arrived in his unit.

4.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.




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 Regular Army on 7 January 1981 and successfully completed training.  He was awarded military occupational specialty 76Y (Unit Supply Specialist).  

3.  A DA Form 4856 (General Counseling Form), dated 22 January 1982, indicates the applicant was counseled for his behavior by his platoon sergeant.  The platoon sergeant stated, "Your abuse of alcohol has caused you to arrive at work late, and times where you failed to completely get out of bed & show up for work.  Your attitude towards the military will not be tolerated any longer.  You were counseled by myself, SP4 G____, the Det Commander & First Sergeant on your alcohol abuse.  This was met with a negative result on your part, thus affecting the mission of this unit Supply."

4.  On 21 April 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for being drunk and disorderly.

5.  On 15 September 1982, the applicant accepted NJP under Article 15 of the UCMJ for disobeying a lawful order from a senior NCO, for using disrespectful language towards a senior NCO, and for communicating a threat.

6.  On 9 November 1982, the applicant’s commander signed an elimination packet and a waiver of rehabilitative transfer on the applicant for separation under the provisions of Army Regulation 635-200, chapter 13 for unsuitability.  The reason cited by the commander was that the applicant received two NJPs within 5 months, that he did not conduct himself as a Soldier, that he was apathetic towards the Army, and that the applicant's presence in the unit represented a threat to the commander's ability maintain order and discipline.

7.  On 9 November 1982, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant declined to submit a statement on his own behalf.

8.  On 16 November 1982, the appropriate authority approved the discharge recommendation, waived a rehabilitative transfer and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13 for unsuitability with a general discharge.  On 24 November 1982, the applicant was separated after completing 1 year, 10 months, and 18 days of creditable active service.  Item 28 (Narrative and Reason for Separation) of his DD Form 214 shows "UNSATISFACTORY PERFORMANCE."

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of that regulation provides, in pertinent part, that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that, in the commander’s judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

10.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show that he received two NJPs within 5 months and the latter was for disobeying a lawful order from a senior NCO, using disrespectful language towards a senior NCO, and for communicating a threat.   Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of an honorable discharge.


2.  The applicant's administrative separation was accomplished in accordance with applicable regulation with no indication of procedural errors that would have jeopardized his rights.  Both the characterization of service and the narrative reason for separation were appropriate considering the facts in the case.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20090002622



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090002622



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1