IN THE CASE OF:	  

		BOARD DATE:	       1 OCTOBER 2009

		DOCKET NUMBER:  AR20090008902 


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 he just wants the discharge upgraded.  He adds that he was told at Fort Belvoir his discharge would be upgraded after six months.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this 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 9 September 1980 and upon completion of initial entry training he was awarded military occupational specialty (MOS) 12C (Bridge Crewman).

3.  The applicant received the following performance counseling:

	a.  22 July 1982, for failing to exchange his linen as instructed;

	b.  10 August 1982, for failing to perform prescribed duties;

	c.  11 August 1982, for failing to perform assigned duties;

	d.  7 September 1982, for failing to appear in morning formation with highly shined boots as he was supposed to; and

	e.  8 February 1983, for missing physical training formation.

4.  On 10 March 1983, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for using marijuana.  

5.  On 1 June 1983, the applicant’s commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  The commander cited as the reasons for the proposed separation the several counseling statements received by the applicant and his wrongful use of marijuana.

6.  On 3 June 1983, the Staff Judge Advocate (SJA) reviewed the separation action and found it legally sufficient.

7.  On 9 June 1983, the appropriate authority approved the recommendation, waived rehabilitative transfer, and directed the applicant's service be characterized as under honorable conditions.

8.  On 17 June 1983, the applicant was discharged, in pay grade E-2, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, with a general, under honorable conditions discharge.  He completed 2 years, 9 months, and 9 days of creditable active service.

9.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the requirements and procedures for the 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 general, under honorable conditions.

11.  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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The chain of command determined that the applicant's overall military service did not meet the standards for a fully honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general, under honorable conditions.

3.  The applicant's record of indiscipline includes several counseling statements and punishment under Article 15, UCMJ, for using marijuana.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  Contrary to the applicant's assertions that he was told that his discharge would be upgraded after six months, the Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to 
the applicant's separation processing.  Therefore, it is concluded his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.  As a result, there is an insufficient evidentiary basis to support
granting the requested relief in this case.

5.  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.



      ___________XXX___________
               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)                                         AR20090008902



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ABCMR Record of Proceedings (cont)                                         AR20090008902



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