IN THE CASE OF:	  

		BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090006888 


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 fully honorable.

2.  The applicant states that he is trying to get a government job and requires an upgrade of his discharge to improve his chances of getting a job.  He adds that it has been over 25 years since his discharge and that the current character of service is holding back his chances for a rewarding quality of life.

3.  The applicant did not provide any additional documentary 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.  Having had prior service, the applicant's records show he enlisted in the Regular Army for a period of 4 years on 29 May 1981.  He held military occupational specialty 11B (Infantryman) and attained the rank/grade of specialist four/E-4.

3.  The applicant's records also show he served in Alaska from on or about 28 November 1983 to on or about 15 January 1984.  His records further show he was awarded the Army Service Ribbon, the Army Achievement Medal, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  On 4 March 1983, the applicant pled guilty at a special court-martial to one specification of unlawfully carrying a concealed weapon on or about 9 January 1983.  The Court sentenced him to a forfeiture of $100.00 pay for 6 months.  The sentence was adjudged on 4 March 1983 and approved on 29 March 1983.

5.  On 27 August 1984, the applicant was relieved from his duties as a fabric and leather inspector at the Quality Assurance Branch of the General Equipment Support Shop at Fort Richardson, AK, due to poor performance and shirking.

6.  On 11 September 1984, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of $100.00 pay, 7 days of extra duty, and a reduction to private first class/E-3 (suspended until 11 October 1984).

7.  The applicant's record reveals a history of performance and/or disciplinary counseling for various reasons including failure to report, lateness to work, and other minor infractions.

8.  On 21 September 1984, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations) for unsatisfactory performance.

9.  On 21 September 1984, 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.

10.  The applicant further acknowledged that he understood he might expect to encounter substantial prejudice in civilian life if discharged and issued a General Discharge Certificate and that there was no automatic upgrade of this type of discharge.  He further declined making a statement in his own behalf.

11.  On 5 October 1984, the immediate commander initiated separation action against the applicant for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200.  The commander stated that the applicant was a substandard performer who refused to respond to rehabilitative measures and counseling efforts by his chain of command.

12.  On 9 October 1984, the separation authority approved the applicant's discharge for unsatisfactory performance and directed he receive a General Discharge Certificate.  On 15 October 1984, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200 with a character of service of general under honorable conditions.  This form also shows that he completed a total of 4 years, 10 months, and 19 days of creditable active military service.

13.  There is no indication that the applicant applied to 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 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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

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 as evidenced by his one instance of court-martial, one instance of NJP, and multiple counseling sessions.  Accordingly, his immediate commander initiated separation action against him.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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 that requirement.

5.  Based on his record of substandard performance and/or indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to relief.

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)                                         AR20090006888



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ABCMR Record of Proceedings (cont)                                         AR20090006888



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