IN THE CASE OF:	  

		BOARD DATE:	        30 July 2009

		DOCKET NUMBER:  AR20090007048 


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 was told when he was released that he could ask for an honorable discharge after a period of 10 years.  He adds that when his unit of assignment merged with another, the new unit did not allow anyone who had three instances of nonjudicial punishment (NJP) to stay in the unit and that he was accordingly let go.  He now feels this action was unfair.

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.  The applicant's records show he enlisted in the Regular Army for a period of 3 years on 15 September 1981.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  The applicant's records show he was awarded the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of NJP under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

	a.  on 24 July 1983, for falsely altering with intent to deceive a DD Form 689 (Individual Sick Slip) by adding the words, "Quarters until 7:30 12 July 1983" on or about 11 July 1983.  His punishment consisted of reduction to private/E-2, a forfeiture of $150.00 pay, and 14 days of extra duty; and

	b.  on 22 August 1983, for disobeying a lawful order on or about 16 August 1983 and absenting himself from his appointed place of duty on or about 16 August 1983.  His punishment consisted of reduction to private/E-1, a forfeiture of $133.00 pay, and 14 days of extra duty.

5.  The applicant’s records reveal multiple performance, personal, and disciplinary counseling statements, on various dates, that included failure to follow instructions, failure to go to his appointed place of duty at the prescribed time, threatening another Soldier with bodily harm, hitting another Soldier with a beer bottle, assaulting another Soldier by punching him in the face, missing formation on multiple occasions, lack of discipline, and failure to repair.

6.  On 18 October 1983, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations) by reason of unsatisfactory performance.  The immediate commander recommended issuance of a General Discharge Certificate.

7.  On 18 October 1983, the applicant acknowledged receipt of the commander's intent to separate him and on 19 October 1983 he 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.  He further acknowledged that he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him, and declined making a statement in his own behalf.

8.  On or about 19 October 1983, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsatisfactory performance.  The immediate commander cited the applicant’s previous incidents of indiscipline and/or misconduct.

9.  On 20 October 1983, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was released from active duty on 28 October 1983.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with a characterization of service of under honorable conditions (general).  This form further confirms he completed a total of 2 years, 1 month, and 14 days of creditable military service.

10.  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.

11.  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.

12.  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.  Accordingly, his immediate commander initiated separation action against him.  His 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.

3.  The Army does not have a policy that allows for an upgrade of a discharge due to passage of time.  Furthermore, there is no evidence in the available records, nor did the applicant provide documentation, to substantiate an upgrade of his discharge.

4.  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 grant him an upgrade of 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.



      _______ _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)                                         AR20090007048



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ABCMR Record of Proceedings (cont)                                         AR20090007048



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