IN THE CASE OF:	  

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090013366 


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, in effect, upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that he was told that after seven years, his discharge would be upgraded.  He states his wife was at Fort Benning, GA, and he was at Fort Lewis, WA, pending discharge after 7 years of service and his first sergeant (1SG) played God over his life.

3.  The applicant provides no 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 record shows he initially enlisted in the Regular Army (RA) on 28 April 1977.  He was trained in and awarded military occupational specialty (MOS) 76P (Materiel Control and Accounting Specialist) and specialist five (SP5)/E-5 is the highest rank/grade he attained while serving on active duty.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he completed overseas tours in Germany and Korea.  It also shows that during his active duty tenure, he earned the Army Good Conduct Medal (2nd Award), Army Service Ribbon, Overseas Service Ribbon, Noncommissioned Officer Professional Development Ribbon, Driver Badge, and Expert Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.  It also shows that the applicant accrued 10 days of time lost during a period of being absent without leave (AWOL) from 1 through 
10 February 1984.  

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions.

5.  On 11 May 1984, the applicant accepted NJP for twice willfully disobeying lawful orders, on 19 and on 30 April 1984; and for failing to go at the time prescribed to his appointed place of duty on 2 May 1984.  His punishment for these offenses was a reduction to specialist four (SP4)/E-4 and 30 days of extra duty.

6.  On 13 June 1984, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty and stealing a taxi ride valued at $12.00 on 6 June 1984, dishonorably failing to pay a just debt of $450.00 from
13 February through 7 June 1984, and dishonorably failing to pay a just debt of $17.28 from 1 March through 7 June 1984.  His punishment for these offenses was a forfeiture of $215.00 and 14 days of extra duty.

7.  On 20 June 1984, the unit commander notified the applicant that he intended to initiate action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, by reason of unsatisfactory performance.

8.  On 20 June 1984, the applicant completed an election of rights in which he declined to consult with counsel, waived his right to have his case considered by and personal appearance before by a board of officers, and elected not to submit a statement in his own behalf.  He also acknowledged his understanding that he could apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge; however, he realized that an act of consideration by either board does not imply that his discharge would be upgraded. 

9.  On 26 June 1984, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and directed the applicant receive a general, under honorable conditions discharge.  On 9 July 1984, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant at the time shows he held the rank of SP4 and he had completed a total of 7 years, 2 months, and 2 days of creditable active military service.  It further shows he accrued 10 days of time lost due to AWOL at the time of his discharge.

10.  There is no indication that the applicant applied to the ADRB for an upgrade of his discharge within that board's 15 year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a of Army Regulation 635-200 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.

12.  Chapter 13 of the same regulation 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.  The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His disciplinary history includes his acceptance of NJP on two separate occasions, which clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, his record did not support the issue of an honorable discharge by the separation authority at the time and does not support an upgrade now.

2.  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.

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.



      _______________________
               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)                                         AR20090013366



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090013366



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1