BOARD DATE:	  22 October 2009

		DOCKET NUMBER:  AR20090008543 


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 an honorable discharge.

2.  The applicant states that at 17 years of age he was not fully aware of the practices and procedures of the United States military.  He feels that he was unfairly discharged.  His characterization of service has forced him to live a life without being fully recognized as a veteran of the U.S. Army.  He contends that his administrative discharge was the easiest and quickest way out of the military.  His general discharge was to be automatically upgraded to honorable after
2 years.  The applicant also states he was under the assumption that he had completed his general educational development (GED) tests but he has not received a record of his scores or a certificate.  Since then, he has earned a Bachelor of Fine Arts degree from Austin Peay State University in Clarksville, TN.  The applicant did not receive any dental assistance at the time of his separation.  Over the years his dental condition has deteriorated.  His teeth are rotten.  He claims that since being a civilian he has "ran into nothing but stoppers."  It is like he was not a veteran of the U.S. Army.  He served his country to the best of his ability.

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), two letters of support, a letter concerning how to obtain a copy of his GED test scores, a billing for labor performed, an Honorable Mention Certificate, a summary of the applicant's abilities as an artist, and his diploma from the Austin Peay State University.

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.  On 28 July 1983, the applicant, at 17 years and 10 months of age, enlisted in the Regular Army (RA).  He completed his initial training and he was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  He was subsequently assigned for duty at Fort Lewis, WA.

3.  On 13 January 1984, the applicant was assigned for duty as a supply specialist with A Company, 9th Combat Support Aviation Battalion.

4.  On 5 June 1984, the applicant was counseled for not being properly prepared for inspection.  

5.  On 6 June 1984, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to report to the prescribed place of duty and for failing to obey a lawful order.  The punishment included 14 days of restriction and extra duty.

6.  On 27 July 1984, the applicant accepted NJP under the provisions of Article 15, UCMJ, for being absent from his place of duty which was the battalion guard shack.  The punishment included a reduction to the rank/grade of private (PV1)/E-1, forfeiture of $125.00 pay per month for 1 month, and 7 days correctional custody (suspended until 1 January 1985).

7.  Evidence of record shows that the applicant had cashed six checks at the Army and Air Force Exchange Service totaling $109.03.  Three were returned due to insufficient funds and three were returned due the applicant's account being closed.


8.  A counseling statement, dated 10 September 1984, indicates that the applicant admitted to having homosexual tendencies.  

9.  On 13 September 1984, the applicant accepted NJP under the provisions of Article 15, UCMJ, for failing to obey a lawful order from a noncommissioned officer and for failing to go at the time prescribed to his appointed place of duty.  The punishment included a forfeiture of $139.00 and restriction and extra duty for 14 days.

10.  On 14 September 1984, a mental status evaluation indicated the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  

11.  On 24 September 1984, the applicant’s commander advised him of his intention to recommend him for separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  

12.  On 26 September 1984, the applicant consulted with counsel and elected not to make a statement in his own behalf.  He also acknowledged that he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge were issued to him.  He indicated that he understood that if he received a less than honorable discharge, he could make application to the Army Discharge Review Board (ADRB) or to the ABCMR for upgrading.  However, an act of consideration by either board did not imply that his discharge would be upgraded.  The applicant further indicated that he understood he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.  

13.  On 26 September 1984, the applicant’s commander initiated a recommendation to separate him from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The commander stated that the applicant had demonstrated an inability or unwillingness to meet acceptable standards required of enlisted personnel in the Army.  The seriousness of the circumstances was such that the applicant's retention would have had an adverse impact on military discipline, good order and morale.  The commander cited the applicant's counseling and three NJP's in support of his recommendation.  The commander further stated that the applicant had not responded to any attempts by his chain of command to improve his duty performance.  Additionally, the commander said that admitted homosexuals had no place in the military.
14.  On 1 October 1984, the appropriate authority approved the recommendation for separation and directed that he be issued a DD Form 257A (General Discharge Certificate).  

15.  Accordingly, he was discharged with a general, under honorable conditions discharge on 12 October 1984.  He had completed 1 year, 2 months, and
15 days of creditable active service.

16.  There is no indication that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

17.  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.

18.  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.

19.  Persons who have served in the active military, naval, or air service and who were discharged or released under conditions other than dishonorable may qualify for Department of Veterans Affairs health care.  The minimum duty requirements for veterans who entered active duty after 16 October 1981 is 
24 continuous months, or the full period for which they were called to active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that at 17 years of age he was not fully aware of the practices and procedures of the United States military.  He feels that he was unfairly discharged.  His general discharge was to be automatically upgraded to honorable after 2 years.  The applicant also states he was under the assumption that he had completed his GED tests, but he has not received a record of his scores or a certificate.  The applicant did not receive any dental assistance at the time of his separation.  Over the years, his dental condition has deteriorated.  His teeth are rotten.  He claims that since being a civilian he has "ran into nothing but stoppers."

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 of the facts of the case.

4.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was almost 18 years of age at the time of his enlistment.  He had satisfactory completed training and he had served for almost a full year before any documented negative incidents.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature to fully complete his term of enlistment.

5.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

6.  The applicant implies that his characterization of service has caused him to be denied medical/dental care.  However, even if his characterization of service was fully honorable, the VA still could not provide him with health care because he did not serve on active duty for the minimum qualifying period.  The applicant should consult with a VA representative for further information.

7.  The available evidence does not show that the applicant had requested, taken, or completed any GED testing.

8.  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 the aforementioned requirement.

9.  In view 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)                                         AR20090008543



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ABCMR Record of Proceedings (cont)                                         AR20090008543



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