IN THE CASE OF:	  

		BOARD DATE:	        26 AUGUST 2009

		DOCKET NUMBER:  AR20090006403 


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 general, under honorable conditions discharge be upgraded to honorable. 

2.  The applicant provides no explanation. 

3.  The applicant provides no documentary evidence 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 U.S. Army Reserve (USAR) on 7 June 1985 for a period of 8 years.  He was ordered to active duty on 11 July 1985 for training.  

3.  On 13 January 1986, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of restriction and extra duty.

4.  Between 24 September 1985 and 13 February 1986, the applicant was counseled on ten occasions for various infractions which included failing to make his bed prior to reporting for formation, failing to follow instructions, missed formations, substandard performance, failing academics, being late for formations, using poor judgment, missing from appointed place of duty, failing to pay just debts, and unprofessional conduct. 

5.  On 12 March 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 the applicant failed his military occupational specialty (MOS) training and "soldierization," and that counseling did not change his performance.

6.  On 12 March 1986, the applicant consulted with counsel, acknowledged notification of his proposed separation from the Army, and elected to submit a statement in his own behalf.  In summary, he stated that he wanted to go to Fort Lee, Virginia, in a new MOS.

7.  On 18 March 1986, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general, under honorable conditions discharge.
    
8.  Accordingly, the applicant was discharged with a general, under honorable conditions discharge on 24 March 1986 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served a total of
8 months and 14 days of creditable active service.  

9.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

10.  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.

11.  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 brief record of service included numerous adverse counseling statements and one nonjudicial punishment.  As a result, 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.

2.  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.    

3.  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

___XX_____  ____XX____  ____XX____  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)                                         AR20090006403



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ABCMR Record of Proceedings (cont)                                         AR20090006403



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