IN THE CASE OF:	

		BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090012455 


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, his discharge was inequitable because it was based on two separate, isolated incidents.  The first involved an intoxicated noncommissioned officer (NCO) trying to give him orders while he was on duty.  The second involved a female Soldier who put her hand in his face.  The applicant adds that his awards and decorations attest to his service and show he was a good Soldier.

3.  The applicant provides, in support of his application, copies of three letters of commendation, three certificates of achievement, two course completion certificates, Army Good Conduct Medal award orders, and 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 (RA) on 5 August 1979.  Upon completion of training he was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle/Power Generator Mechanic).

3.  On 4 January 1983, the applicant received nonjudicial punishment (NJP) under Article15, Uniform Code of Military Justice (UCMJ), for on or about
11 December 1982, using disrespectful language toward his superior NCO; violating a lawful general regulation by reporting to guard duty in mixed clothing; failing to go at the time prescribed to his appointed palace of duty, to wit:  Motor Pool Guard; and for on or about 14 December 1982, failing to go to his appointed place of duty, to wit:  morning formation.

   a.  His punishment consisted of forfeiture of $168.00 for one month (suspended for six months), reduction to private first class (PFC)/E-3 (suspended for six months), and 14 days of extra duty.

   b.  On 17 January 1983, the suspension of the punishment of forfeiture of $168.00 for one month and reduction to PFC (E-3) was vacated and ordered duly executed based on the applicant's offenses of disorderly conduct, disobeying an order, using a provoking gesture, and assault consummated by a battery.

4.  On 23 June 1983, the applicant received NJP under Article15, UCMJ, for on or about 14 June 1983, being disorderly in command; having knowledge of a lawful order issued by his superior NCO, disobeying the same; wrongfully using provoking gestures by pointing in a provoking manner towards the nose of a female Soldier; and unlawfully grabbing by the throat and leg with his hand a female Soldier.  His punishment consisted of reduction to E-2, forfeiture of $147.00 for one month (suspended for six months), 14 days of extra duty, and
14 days of restriction (suspended for six months).

5.  On 15 July 1983, the applicant's commander notified the applicant that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 (Unsatisfactory Performance), based on inaptitude and apathy (lack of appropriate interest), defective attitude, and inability to expend effort constructively.  The applicant was advised of his rights and the separation procedures involved.

6.  On 15 July 1983, the applicant acknowledged receipt of the notification of separation action for unsatisfactory performance and that:

   a.  military legal counsel for consultation was available to assist him;

   b.  he was advised he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge is issued to him;

   c.  he understood his case would not be considered by a board of officers;

   d.  he elected not to submit statements in his own behalf; and

   e.  he and his legal counsel each placed their signature on the document.

7.  On 26 July 1983, the company commander recommended the applicant be discharged from the U.S. Army under the provisions of Army Regulation 635-200, paragraph 13-2, for unsatisfactory performance.

8.  On 18 October 1983, the authorized separation authority in the applicant's case waived the rehabilitative requirements and approved the applicant's separation.  The separation authority also directed the applicant be issued a General Discharge Certificate.

9.  The applicant's DD Form 214 shows he was discharged under honorable conditions on 9 November 1983, under the provisions of Army Regulation
635-200, chapter 13, based on unsatisfactory performance.  At the time he had completed 4 years, 2 months, and 25 days of net active service.  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with (M-16) Rifle Bar, and the Army Good Conduct Medal.

10.  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.

11.  In support of his application, the applicant provides the following documents.

   a.  Three letters of commendation (dated 22 February, 21 March, and 28 April 1980) and a certificate of appreciation (dated 29 February 1980) that commend the applicant for his outstanding performance of duty during the Annual General Inspection from 4 to 15 February 1980.
   b.  A report of completion and two certificates of completion (dated 9 June 1980, 20 November 1981, and 13 August 1982) that show the applicant completed a 3-semester hour Criminal Investigation course, German Headstart, and a 60-hour Basic Skills Course.
   
   c.  Two certificates of achievement (dated 23 September 1982 and
25 October 1983) that commend the applicant for his performance during the Carbine Fortress, REFORGER 82 Exercise from 8 to 23 September 1983, and as a member of the F Battery, 29th Field Artillery softball team.

	d.  Headquarters, U.S. Army Regional Personnel Center, Grafenwoehr [Germany], Permanent Orders 28-21, dated 14 September 1982, that show the applicant was awarded the Army Good Conduct Medal for exemplary behavior, efficiency, and fidelity from 15 August 1979 to 14 August 1982.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded to an honorable discharge because it was based on two isolated incidents and is inequitable, and his awards and decorations attest to his good service.

2.  The applicant's contention that his achievements, commendations, and awards attest to his service and show he was a good Soldier is not sufficiently mitigating to warrant upgrading the character of service of his discharge.

3.  Records show the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 13-2, based on unsatisfactory performance was administratively correct and in compliance with applicable regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, records show the applicant was properly and equitably separated from active duty.  Therefore, considering all the facts of this case, the type of discharge and character of service directed were appropriate.

4.  The applicant's military service records show he received NJP on two separate occasions and the two NJP actions cite a total of eight offenses.  In addition, records show the suspended punishment that was imposed under the first NJP the applicant received was vacated based on four additional offenses.  As a result, the evidence of record refutes the applicant's contention that his discharge was inequitable because it was based on two separate, isolated incidents.  Thus, the applicant's record of service clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to upgrade of the character of service of his discharge.

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.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090012455



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ABCMR Record of Proceedings (cont)                                         AR20090012455



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