IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20090003138 


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 his discharge was harsh because the new first sergeant at his last duty station in Germany did not see eye-to-eye with him and other Soldiers.  He would like his discharge upgraded because it would help in his job search in this struggling economy.  He also points out that he is in a homeless situation.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army on 11 October 1983 for a period of 3 years.  He was awarded military occupational specialty 19D (cavalry scout) and attained the rank of specialist four.

3.  On 16 April 1986, nonjudicial punishment was imposed against the applicant for disobeying three lawful orders.  His punishment consisted of a reduction to 
E-3 (suspended), restriction, and extra duty.  On 24 June 1986, the suspended portion of the sentence was vacated.

4.  On 3 July 1986, nonjudicial punishment was imposed against the applicant for being absent without leave for 1 day.  His punishment consisted of a reduction to E-2, restriction, and extra duty.

5.  Between 28 October 1985 and 5 August 1986, the applicant was counseled on numerous occasions for various infractions which included failures to repair, failure to follow instructions, repeated absence from duty, poor military appearance, poor military bearing, unprofessional military attitude and conduct, failure to obey lawful orders, and extremely low desire to respond to corrections.

6.  On 11 August 1986, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  His unit commander cited that despite continuous counseling from his chain of command the applicant did not meet Army standards, that such behavior would not be tolerated, and that his actions were detrimental to the good order and discipline of the unit.

7.  On 11 August 1986, after consulting with counsel, the applicant waived consideration of his case by an administrative separation board and waived a personal appearance.  He also acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected not to submit a statement in his own behalf.

8.  On 12 August 1986, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

9.  Accordingly, the applicant was discharged with a general discharge on 20 August 1986 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served a total of 2 years, 10 months, and 10 days of creditable active service.

10.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

11.  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, 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.

12.  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.  A discharge is not upgraded for the purpose of obtaining employment opportunities.

2.  Since his record of service included numerous adverse counseling statements and two nonjudicial punishments, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the 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.



      ___________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)                                         AR20090003138



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ABCMR Record of Proceedings (cont)                                         AR20090003138



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