IN THE CASE OF:	  

		BOARD DATE:	    17 February 2010

		DOCKET NUMBER:  AR20090013640 


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 that the discharge should be upgraded to enhance his employability and social standing.

3.  The applicant provides no documentation in support of his request.

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 12 February 1981.  He completed his training and he was awarded military occupational specialty (MOS) 
75B (personnel administration specialist).  He was subsequently reassigned to Korea in June 1981.  He was advanced to the rank/grade of private first class (PFC)/E-3.  He returned to the continental United States in June 1982, assigned to Fort Stewart, GA.

3  The applicant served without a discreditable incident of record until 8 July 1982 when he was counseled for missing formation.  Thereafter, the applicant's record reflects the following:

	a.  12 July 1982, counseled about being late for formation;

	b.  17 August 1982, counseled about the poor appearance of his living space;

	c.  1 October 1982, counseled about his work performance, credited with being knowledgeable but faulted for not following instructions, unwillingness to obey orders, and lack of organization;

	d.  6 October 1982, counseled for missing remedial physical training (PT) on 
5 October 1982 and scheduled PT on 6 October 1982;

	e.  5 November 1982, counseled for substandard duty performance;

   f.  12 November 1982, counseled for being late to work;
   
   g.  10 December 1982, counseled for improper uniform and nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent from his appointed place of duty (morning PT formation);
   
   h.  11 January 1983, counseled for violating unit policy on bed linen;
   
   i.  24 January 1983, counseled for substandard job performance;
   
   j.  10 February 1983, counseled for returning late from lunch;
   
   k.  9 March 1983, counseled for needing to shave;
   
   l.  18 April 1983, NJP for absence from his appointed place of duty; and
   
   
   m.  27 April 1983, counseled for failure to submit a required document despite specific instructions to do so.

4.  On 29 April 1983, the company commander notified the applicant of initiated action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 13, for unsatisfactory performance; specifically, his inability to perform his military duties to standard and his chronic refusal to follow instructions.

5.  The applicant consulted with counsel, indicated that he was submitting statements in his own behalf and acknowledged that he could expect to encounter substantial prejudice in civilian life as the result of a general discharge.

6.  The applicant's statement offered that prior to his arrival at his present assignment he had never been allowed to work in his specialty.  Yet, he had been expected to perform as if trained and experienced.  He contended that he had improved and that the unit had received several outstanding reports as the direct result of his personal performance.  He stated that his request for transfer had been denied because they claimed his loss would hinder the unit.  He admitted that he had been late for formation, but attributed this to the fact that his barracks assignment was 7 miles from his place of duty and there had been "no affirmative action to assist us in reaching our duty station."  He thought that he had suffered by comparison to a clerk who had had more experience.

7.  The appropriate authority approved the separation and directed the issue of a general, under honorable conditions discharge.

8.  On 23 May 1988, he was discharged under the provisions of Army Regulation 635-200, chapter 13.  He had 2 years, 3 months, and 9 days of creditable service.

9.  There is no available evidence that the applicant applied to the Army Discharge Review Board (ADRB) during its 15-year statute of limitations.

10.  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.

11.  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.  The applicant states that his discharge should be upgraded to enhance his employability and social standing.

2.  Although the applicant was separated for unsatisfactory performance, his problem was his behavior rather than his performance as a personnel clerk.  He was credited with being knowledgeable but faulted for not following instructions and his unwillingness to obey orders.  Furthermore, he started his enlistment with approximately 16 months of incident-free service.

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

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her 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.

6.  In view of the foregoing there is no basis for granting 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)                                         AR20090013640



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ABCMR Record of Proceedings (cont)                                         AR20090013640



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