IN THE CASE OF:	

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090013011 


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 he was under emotional duress due to the birth of his first child and a failed marriage due to separation.  He contends the he was young and impulsive, that he was not really ready to commit 100 percent, and that he was stressed out and confused.  

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 was born on 20 August 1961.  Having served approximately 
20 months in the Army National Guard, the applicant enlisted in the Regular Army on 4 September 1981 for a period of 3 years.  He successfully completed advanced individual training in military occupational specialty 16H (air defense artillery operations and intelligence assistant).

3.  On 5 May 1982, nonjudicial punishment was imposed against the applicant for disobeying two lawful orders.  His punishment consisted of a forfeiture of pay, a reduction to E-1 (suspended), and 7 days of correctional custody.  On 13 May 1982, the suspended portion of the punishment was vacated. 

4.  On 20 May 1982, nonjudicial punishment was imposed against the applicant for disobeying a lawful order.  His punishment consisted of a forfeiture of pay (suspended) and 30 days of correction custody.  On 7 October 1982, the suspended portion of the punishment was vacated.

5.  On 7 October 1982, nonjudicial punishment was imposed against the applicant for failure to repair and failing to obey a lawful order.  His punishment consisted of 30 days of correctional custody.

6.  On 24 October 1982, a bar to reenlistment was imposed against the applicant.

7.  On 4 February 1983, nonjudicial punishment was imposed against the applicant for failure to repair and disobeying a lawful order.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.

8.  On 4 February 1983, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The unit commander cited the applicant's numerous Article 15s and bar to reenlistment and stated that he had been a continuous disciplinary problem and had not shown any potential for advancement.
  
9.  On 9 February 1983, the applicant consulted with counsel and waived his rights.  He also acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected not to submit a statement in his own behalf.

10.  On 7 March 1983, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.
    
11.  Accordingly, the applicant was discharged with a general discharge on 
29 March 1983 under the provisions of Army Regulation 635-200, chapter 
13, for unsatisfactory performance.  He had served a total of 1 year, 10 months, and 8 days of creditable active service.  

12.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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, 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.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he was young and impulsive, he was 
20 years old when he enlisted in the Regular Army and he had completed 
20 months in the Army National Guard. 

2.  The applicant's contentions that he was under emotional duress due to the birth of his first child and a failed marriage due to separation were noted.  However, there is no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures.

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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

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

5.  The applicant's record of service included four nonjudicial punishments and a bar to reenlistment.  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.

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)                                         AR20090013011





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ABCMR Record of Proceedings (cont)                                         AR20090013011



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