BOARD DATE:	  16 July 2009

		DOCKET NUMBER:  AR20090004180 


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 1984 general discharge be upgraded to fully honorable.

2.  The applicant states he was a very good Soldier during his time in the military and had a good service record.  He states, in effect, that he made a mistake and thinks sufficient time has passed that an upgrade of his discharge is now warranted.

3.  The applicant provides no additional evidence 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.  Records available to the Board indicate the applicant initially entered military service as a member of the Army National Guard in 1976.  On 11 May 1979, he was discharged from the Army National Guard with a general discharge and involuntarily ordered to active duty under the provisions of National Guard Regulation 600-200, paragraph 7-10e (failure to satisfactorily participate in required unit training).

3.  On 12 May 1979, he entered active duty as a food service specialist and was assigned to Fort Hood, Texas.  In September 1980, he enlisted in the Regular Army and by May 1981 had been promoted to pay grade E-4.  

4.  The applicant’s file also contains evidence of two letters of appreciation; one of which was received in 1980 and the other in 1981.  He received two certificates of achievement in 1981 and was awarded an Army Good Conduct Medal for the period 1978 to 1981.

5.  In July 1983, following his reassignment to Fort Carson, Colorado, he reenlisted for a period of 3 years.

6.  Between October 1983 and July 1984 the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for offenses which included use of marijuana, being absent from his place of duty, missing movement, and being drunk on duty.  As a result of the UCMJ actions, by May 1984 he had been reduced to pay grade E-2.  His record contains numerous counseling statements related to his conduct and performance during the same period.

7.  On 1 August 1984, the applicant was notified of his unit commander’s intent to recommend him for elimination from the U.S. Army, under the provisions of paragraph 13-2a, chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) with a recommendation that he be issued a general discharge under honorable conditions.  The commander stated the reasons for the proposed recommendation were the applicant’s unsatisfactory performance and resistance to rehabilitative efforts.  The unit commander noted that in his judgment the applicant would not develop sufficiently to participate satisfactorily in further training or become a satisfactory Soldier.

8.  That same day, after consulting with counsel, the applicant acknowledged the proposed elimination action for unsatisfactory performance.  He waived his right to have his case heard before a board of officers.  He also acknowledged that he understood that he might be issued a general discharge under honorable conditions.  Although the applicant indicated he would submit statements on his own behalf there was no evidence in the available records that any such statements were ever submitted.

9.  On 11 September 1984 the appropriate authority approved the applicant's separation action and specified the issuance of a General Discharge Certificate.  

10.  The applicant was discharged on 24 September 1984, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  His service was characterized as under honorable conditions.  He was credited with 5 years, 4 months, and 13 days of total active service in addition to his prior service in the Army National Guard.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 contained the policy and outlined the procedures for separating individuals for unsatisfactory performance, to include separation of individuals, who in the commander’s judgment, would not develop sufficiently to participate satisfactorily in further training, or if it was likely that the circumstances forming the basis for separation proceedings would continue or recur.  Service of individuals separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.

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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to a fully honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.  He has not shown error, injustice, or inequity for the relief he now seeks.  




2.  The applicant's four records of nonjudicial punishment and failure to conform to standards in spite of counseling by his unit leadership diminished the quality of his service below that meriting a fully honorable discharge.  

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with applicable regulations and the characterization of his service and the reasons therefore were appropriate, considering all the facts of the case.  His award of the Army Good Conduct Medal, letters of appreciation, certificates of achievement, and promotion to pay grade E-4, are indicators the applicant was fully capable of performing honorably.  He has provided no evidence nor shown that his unsatisfactory performance was excusable.  

4.  The mere passage of time does not serve as a basis to upgrade one’s character of service.

5.  In view of the foregoing, there is no basis for granting the applicant's 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.




      _______ _   _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)                                         AR20090004180



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ABCMR Record of Proceedings (cont)                                         AR20090004180



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