IN THE CASE OF:	  

		BOARD DATE:		  24 November 2009   

		DOCKET NUMBER:  AR20090010742


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 that his general discharge for unsatisfactory performance be upgraded to honorable.

2.  The applicant states he regrets signing for the discharge.  It was an error in judgment to have done so.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty.)

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 on 26 February 1986.  He completed training as a petroleum supply specialist and was stationed at Fort Campbell, Kentucky.  On 26 February 1987, he was advanced to private first class, pay grade E-3.

3.  He was counseled on four separate occasions for numerous instances of failure to be at his appointed place of duty, once for failing to follow proper procedures to zero and qualify with his personal weapon, and once for violating the chain of command and spreading inaccurate information.  On 31 March 1987, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for missing movement and was reduced to pay 
grade E-2.

4.  On 8 May 1987, the applicant was notified he was being recommended for separation for unsatisfactory performance.

5.  He consulted with counsel and waived his right to submit statements in his own behalf.  He indicated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him and that he could apply to the Army Discharge Review Board and to this Board for upgrading his discharge.

6.  The separation authority waived any rehabilitation requirements, approved the separation, and directed a general discharge.

7.  On 29 May 1987, the applicant was discharged under the provisions of Army regulation 635-200 (Personnel Separations), chapter 13 for unsatisfactory performance.  He had completed 1 year, 3 months, and 29 days of creditable active service and had no lost time.

8.  There is no available evidence that the applicant applied to the Army Discharge Review Board during that board's 15-year period of eligibility.

9.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation 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.

10.  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 states he regrets signing for the discharge.  It was an error in judgment to have done so.

2.  Considering the repeated nature of his misconduct the separation with a general discharge for unsatisfactory performance could be considered lenient treatment.

3.  There is no available evidence or argument to show that the applicant's agreeing with the separation had any significant impact on the case.  Had he contested the action the command could have easily substantiated an even less favorable separation.

4.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the 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.

6.  In view of the foregoing findings and conclusions, it would be appropriate to rectify this injustice by correcting the applicant's records as recommended below.

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)                                         AR20090010742



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ABCMR Record of Proceedings (cont)                                         AR20090010742



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