IN THE CASE OF:	

		BOARD DATE:	10 September 2009    

		DOCKET NUMBER:  AR20090007912 


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 upgrade of his general, under honorable conditions discharge to a fully honorable discharge.

2.  The applicant states that he was told that if he stayed out of trouble his general, under honorable conditions discharge would revert to an honorable discharge within 6 months; however, to date he has not received his upgrade.

3.  The applicant provides no additional documents with 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 Regular Army (RA) in Houston, Texas on 19 July 1983 for a period of 3 years and training as an infantryman.  He completed his         one-station unit training (OSUT) at Fort Benning, GA and he was transferred to Hawaii on 11 November 1983 for duty as a light weapons infantryman.

3.  On 8 August 1984, nonjudicial punishment (NJP) was imposed against the applicant for the wrongful use and possession of marijuana.  His punishment consisted of a reduction to the pay grade of E-1 (suspended for 60 days), and extra duty and restriction.

4.  On 15 August 1984, NJP was imposed against the applicant for failure to go at the time prescribed to his place of duty.  His punishment consisted of a reduction to the pay grade of E-1, and extra duty and restriction.

5.  On 27 August 1984, the applicant's commander initiated action to bar the applicant from reenlistment.  He cited the applicant's disciplinary record, his lack of motivation, and his inability to handle the daily stress of military life as the basis for his recommendation.  The applicant elected not to submit matters in his own behalf and the battalion commander approved the bar to reenlistment on 30 August 1984.

6.  On 13 November 1984, the applicant's commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance because he was unsuitable for further military service.  He cited as the basis for his recommendation the fact that the applicant had demonstrated apathy towards his military obligations, that he was immature and unmotivated to become a productive Soldier, that he had failed to respond to numerous counseling sessions regarding his failure to go to his place of duty, his repeated poor personal hygiene and appearance, his repeated poor job performance, failure to follow instructions, disobeying lawful orders, disrespect for authority, and his failure to pay his just debts.

7.  After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.  He also acknowledged that he understood the procedures for applying to the Army Discharge Review Board (ADRB) and this Board for an upgrade of his discharge.

8.  The appropriate authority approved the recommendation for discharge on 26 November 1984 and directed that he be furnished a General Discharge Certificate.

9.  Accordingly, he was discharged with a general, under honorable conditions discharge on 18 December 1984, under the provisions of Army Regulation
635-200, chapter 13, for unsatisfactory performance.  He had served 1 year and 5 months of total active service.

10.  There is no evidence in the available records to show that he ever applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 (Enlisted Personnel), chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance if it was determined that the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  A discharge under honorable conditions is normally considered appropriate and there has never been a provision for automatic upgrade of such discharges.

12.  Paragraph 3-7a of Army Regulation 635-200 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.

13.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his overall record of service and the number of repeated offenses he committed in such a short period of service.  His service simply does not rise to the level of a fully honorable discharge.

2.  The applicant’s administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.
3.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

4.  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.  

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)                                         AR20090007912



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ABCMR Record of Proceedings (cont)                                         AR20090007912



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