BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090005929 


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 under honorable conditions discharge to an honorable discharge.

2.  The applicant states he was told at the time of his discharge that he could apply for an honorable discharge after 6 months.  He further states that he is a proud Veteran but that his American Legion Post is questioning his eligibility because of his discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 17 June 1983, in support of this 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 record shows that he enlisted in the Regular Army on 13 October 1981.  He was trained in and awarded military occupational specialty 19E (Armor Crewman) and private first class/E-3 is the highest rank he attained while serving on active duty.

3.  The applicant's record documents no acts of valor or significant achievement.

4.  On 9 February 1983, the applicant accepted nonjudicial punishment for being drunk and disorderly.  As punishment for this offense the applicant received a reduction to private two/E-2, forfeiture of $150.00, extra duty for 14 days and restriction.

5.  On 29 March 1983, a summary court-martial found the applicant guilty of seven specifications of violating Article 134 for possessing, distributing, and transferring marijuana during the period October 1981 through 13 January 1983.  As a result, he was sentenced to be reduced to private/E-1, forfeiture of $382.00 for 1 month, and to be confined at hard labor for 30 days.

6.  On 21 April 1983, the applicant was released from confinement and the unexecuted portion of the applicant's sentence to confinement at hard labor was suspended.  On the same date, he was transferred to the Retraining Brigade, Fort Riley, Kansas, for the purpose of retraining and counseling.

7.  The applicant's records contain weekly training progress reports prepared during his tenure in the retraining brigade which cite several disciplinary infractions to include missing formation, late to formation, failure to shave, and failure to follow a lawful written order.  In a training progress report, dated 27 May 1983, the Training Team Commander concluded the applicant would not develop sufficiently to participate satisfactorily in further training and that his ability to perform effectively in the future was unlikely.

8.  On 1 June 1983, the battalion commander notified the applicant that separation action was being initiated on him due to unsatisfactory performance.  The letter of notification shows that the applicant was advised of his rights.  The company commander also advised the applicant he may receive a General or Honorable Discharge Certificate as a result of the action.

9.  On 1 June 1983, the applicant acknowledged with his signature that he had been advised by consulting counsel of the basis for the contemplated action to separate him from the Army for unsatisfactory performance and elected not to submit statements in his own behalf.  He acknowledged he understood that because he would have less than 6 years active and/or reserve military service at the time of separation, he was not entitled to have his case heard by an administrative separation board.  The applicant also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further indicated that he understood he would be ineligible to apply for enlistment in the U.S. Army for a minimum period of 2 years after discharge.  The applicant’s legal counsel also affixed his signature to the document.

10.  On 1 June 1983, the applicant’s company commander recommended the applicant's separation from service under the provisions of Army Regulation 
635-200 (Enlisted Personnel - Enlisted Separations), paragraph 13-2a, for unsatisfactory performance and forwarded the separation action through the chain of command to the approving authority.  The basis for the commander’s recommended action included the applicant’s past performance and his belief that the applicant had not developed sufficiently to further participate satisfactorily in training or become a satisfactory Soldier.  The commander further stated that it did not appear that the applicant possessed the ability to perform further duties effectively and the potential for advancement and leadership was unlikely.

11.  On 16 June 1983, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 13-2a, and directed the applicant be issued a General Discharge Certificate.

12.  The applicant’s DD Form 214 shows he was discharged on 17 June 1983 with a general under honorable conditions discharge under the provisions of Army Regulation 635-200, paragraph 13-2a, based on unsatisfactory performance.  At the time he had completed 1 year, 7 months, and 12 days of net active service.  The DD Form 214 shows he had a total of 21 days of time lost.

13.  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 limitations.

14.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation 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.

15.  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.  The applicant's contention that his discharge should be upgraded to an honorable discharge has been carefully considered.  However, there is insufficient evidence to support his claim.

2.  The evidence of record shows that upon release from confinement the applicant was afforded the opportunity for retraining to prepare him for continued military service.  However, the applicant's record of indiscipline continued and subsequently led to his commander's recommendation for discharge.

3.  The applicant’s record of service clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  It was not sufficiently meritorious to warrant an honorable discharge.  Therefore, the applicant is not entitled to an honorable discharge.

4.  The applicant's administrative discharge was accomplished in compliance with applicable regulations and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

5.  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.  Therefore, in view of all 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)                                         AR20090005929



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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