IN THE CASE OF:	

		BOARD DATE:	 3 December 2009 

		DOCKET NUMBER:  AR20090011131 


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 be upgraded to honorable.

2.  The applicant states that when he was released he was told his discharge would be upgraded within 6 months.

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 on 15 July 1980 for a period of 4 years.  He successfully completed basic combat and advanced individual training in military occupational specialty 36C (wire system installer/operator).

3.  A U.S. Army Criminal Investigation Command Report of Investigation, dated 19 April 1982, states that the applicant was apprehended by military authorities on 12 April 1982 and charged with indecent assault/indecent exposure.

4.  On 24 May 1982, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay and extra duty.

5.  On 4 June 1982, the applicant was counseled for disobeying a lawful command.

6.  A dishonored check notification for $25.00, dated 25 March 1983, pertaining to the applicant was sent to his commanding officer.

7.  On 18 May 1983, the applicant acknowledged a just debt of $161.24 and agreed to make payment.  He acknowledged that failure to pay would result in a copy of this statement being sent to his commanding officer.

8.  On 28 June 1983, 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.  His commander based his recommendation for separation on the applicant's unsatisfactory performance and frequent instances of domestic disturbances.

9.  On 8 July 1983, the applicant consulted with counsel, acknowledged notification of his proposed separation from the Army, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, and elected to submit a statement in his own behalf.  In summary, he stated that he was not given sufficient time to remedy his situation (bad checks), that he realized he was responsible for his wife's actions (writing bad checks), and that the consequences of his wife's actions and her carelessness affected his career.  He stated that his commander was using a counseling statement to justify elimination and not as a corrective tool, that his commander chose to find him guilty based upon mere accusations and reports, and that he was not given the opportunity to avail himself of rehabilitation measures.  He requested to be allowed to remain the Army or in the alternative that his discharge be characterized as honorable.

10.  On 19 July 1983, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general under honorable conditions discharge.

11.  Accordingly, on 21 July 1983, 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 and 7 days of creditable active service.

12.  On 15 January 1997, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

13.  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, provided for separation due to unsatisfactory performance when in the commander’s judgment the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation would be characterized as honorable or under honorable conditions.

14.  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.

15.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  A discharge upgrade is not automatic.

2.  The applicant's record of service included an adverse counseling statement, indebtedness, and one instance of nonjudicial punishment.  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.

3.  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.

4.  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)                                         AR20090011131



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ABCMR Record of Proceedings (cont)                                         AR20090011131



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