BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090009353 


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 under honorable conditions discharge to fully honorable.

2.  The applicant states that he successfully fulfilled his selective service obligation without incident.

3.  The applicant did not provide any additional 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's records show he enlisted in the Regular Army for a period of 3 years on 2 September 1980.  He completed basic combat and advanced individual training and was awarded military occupational specialty 12C (Bridge Specialist).  He was honorably discharged on 21 June 1983 for the purpose of immediate reenlistment and executed a 3-year reenlistment on 22 June 1983.  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  The applicant's records show he served in Germany from on or about 15 July 1982 to on or about 28 May 1984.  His records further show he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), the Marksman Marksmanship Qualification Badge with Grenade Bar, the Army Service Ribbon, and the Army Good Conduct Medal.

4.  On 29 May 1984, the applicant pleaded not guilty at a special court-martial to three specifications of wrongfully possessing and distributing various amounts of marijuana during the month of February 1984.  The court found him guilty of all specifications and sentenced him to a reduction to private/E-1, a forfeiture of $397.00 pay per month for 6 months, and confinement at hard labor for 6 months.  The sentence was adjudged on 29 May 1984 and was approved on 27 June 1984.

5.  On 9 October 1984, the applicant's immediate commander notified the applicant of his intent to separate him from the Army under the provisions of chapter 13 of Army Regulation 600-200 (Personnel Separations) by reason of unsatisfactory performance.  The immediate commander cited the applicant's record of discreditable acts and conduct as prejudicial to good order and discipline.

6.  The applicant acknowledged receipt of the letter of notification of separation action in accordance with chapter 13 of Army Regulation 635-200 [date stamped 18 October 1984].  He consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights.  He further indicated that he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

7.  The applicant's immediate commander initiated a recommendation for separation of the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsatisfactory performance.  The immediate commander remarked that despite counseling and rehabilitation efforts by various individuals, the applicant did not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory member.  Based on his past performance, it did not seem likely he would discontinue his disruptive influence or overcome his deficiencies and that the magnitude of his unsatisfactory performance did not dictate other disposition.

8.  On 10 October 1984, the applicant's intermediate commander recommended approval of the applicant's discharge.  He further recommended the applicant be transferred to the U.S. Army Reserve Individual Ready Reserve (IRR).

9.  On 24 October 1984, the staff judge advocate reviewed the separation packet and found it legally sufficient and also recommended approval of the discharge.

10.  On 25 October 1984, the separation authority approved the applicant's discharge from the Army under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsatisfactory performance and directed he be transferred to the IRR and that his service be characterized as under honorable conditions (general).  Accordingly, on 29 October 1984, the applicant was discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200 with a character of service as under honorable conditions (general).  This form also shows that he completed 3 years, 8 months, and 25 days of creditable active military service and had 153 days of lost time.

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

12.  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.  A general or honorable discharge was considered appropriate.

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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's duty performance was tarnished by a court-martial for a serious offense that resulted in his confinement at hard labor.  Accordingly, his chain of command initiated separation action against him.  The evidence of record further shows that the applicant's separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.

2.  The applicant's successful fulfillment of his selective service obligation is not sufficiently mitigating to grant him the requested relief.  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, he is not entitled to 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)                                         AR20090009353



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ABCMR Record of Proceedings (cont)                                         AR20090009353



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