IN THE CASE OF:	  

		BOARD DATE:	      14 JULY 2009

		DOCKET NUMBER:  AR20090003728 


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states that he became a single parent during his military service which caused more hardship on his military life then he believed it would and caused him to be late to formation at times.  He adds that he could not deploy with his unit before he made arrangements for the care of his child.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 25 June 1987, 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 records show he enlisted in the Regular Army for a period of 3 years and 14 weeks on 12 February 1986.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records show he was awarded the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  On 13 May 1987, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL) during the period on or about  24 April 1987 through on or about 29 April 1987.  His punishment consisted of a reduction to private/E-1.

5.  The applicant’s records reveal multiple performance, personal, and disciplinary counseling statements on various dates that included multiple instances of failure to pay debt, dishonored checks, irresponsible attitude, lying, fraud, and poor performance.  

6.  On 20 May 1987, the applicant’s immediate commander initiated a Bar to Reenlistment certificate against the applicant citing his prior AWOL, habitual lies, and inability to manage his finances.  He was furnished with a copy of the bar to reenlistment; however, he elected not to submit a statement on his own behalf.  

7.  On 11 June 1987, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations), for unsatisfactory performance.  The immediate commander recommended a General Discharge Certificate.   

8.  On 17 June 1987, the applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  The applicant further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further declined making a statement in his own behalf.

9.  On 18 June 1987, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200 because of unsatisfactory performance.  The immediate commander remarked that the seriousness of the circumstances was such that the applicant’s retention would have had an adverse impact on military discipline, good order, and morale.  The immediate commander further recommended a waiver of the rehabilitative transfer requirements and recommended a General Discharge Certificate. 

10.  On 19 June 1987, the separation authority approved the applicant’s discharge, under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance, waived the rehabilitative requirements, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 25 June 1987.  The DD Form 214 he was issued confirms he was discharged with a characterization of service of under honorable conditions (general) and that he completed 1 year, 4 months, and 20 days of creditable military service and had 4 days of lost time due to AWOL.

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

12.  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.

13.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contention that his discharge should be upgraded because he encountered a hardship after he became a single parent was carefully considered but found to be without merit.  There is no evidence in the applicant’s records that the applicant encountered any hardship or that he addressed such hardship with his chain of command and/or other support channels. 

2.  The evidence of record shows that the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards.  Accordingly, his immediate commander initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  There does not seem to be an error or an injustice in his discharge. 

3.  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 evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to upgrade his discharge.

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)                                         AR20090003728



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ABCMR Record of Proceedings (cont)                                         AR20090003728



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