BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090008727 


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, in effect, that his discharge is based on one incident in 40 months of excellent performance.  He contends that he was not allowed to present himself correctly. 

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 Regular Army (RA) on 16 September 1981 for a period of 4 years.  He successfully completed basic combat and advanced individual training in military occupational specialty (MOS) 19D (cavalry scout).  

3.  Records show the applicant departed absent without leave (AWOL) on
2 August 1984 and he returned to military control on 6 August 1984.

4.  On 24 January 1985, the applicant was counseled for writing bad checks.  A DA Form 4856-R (General Counseling) states that on or about 28 December 1984 the applicant's unit received a packet of letters of indebtedness and bad checks from the applicant's previous commander.  The applicant had over $1,000.00 in bad checks. 

5.  On 24 January 1985, the applicant was counseled for going AWOL.  The applicant's reason for going AWOL was family problems.  

6.  On 5 February 1985, nonjudicial punishment was imposed against the applicant for being AWOL from 4 January 1985 to 23 January 1985 and writing bad checks (two specifications).  His punishment consisted of a reduction to specialist four (SP4)/E-4, a forfeiture of pay (suspended), and extra duty.

7.  On 25 February 1985, 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.

8.  On 26 February 1985, 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 requested an honorable discharge based on his record of service and the many letters and awards he had received.  He pointed out that prior to his recent trouble he had not been in any trouble and his trouble was due to family problems.

9.  On 26 February 1985, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general, under honorable conditions discharge.

10.  Accordingly, on 6 March 1985 the applicant was discharged with a general, under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served a total of
3 years, 4 months, and 27 days of creditable active service with 24 days of lost time due to AWOL.  

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

12.  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.

13.  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 contention that his discharge is based on one incident in 
40 months of excellent performance was noted.  However, his record of service included adverse counseling statements, one nonjudicial punishment, and 
24 days of lost time.  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 were appropriate considering all the facts of the case.  Therefore, there is no basis for warranting the applicant's requested 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)                                         AR20090008727



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ABCMR Record of Proceedings (cont)                                         AR20090008727



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