IN THE CASE OF:	  

		BOARD DATE:	    17 February 2010

		DOCKET NUMBER:  AR20090013973 


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 the character of service of his general under honorable conditions discharge to an honorable discharge.

2.  The applicant states he was young and foolish during his military service.

   a.  He states he paid $1,200.00 into the GI Bill; however, he was not eligible to use the benefit due to his discharge and he was not repaid the funds he contributed.  He adds he was under the impression that his discharge would be automatically changed to an honorable discharge six months after his separation from the Army.  

   b.  He states he has done electrical work for the past 21 years.  He adds he was recently injured on the job and is now unable to work.
   
   c.  He states he would like to attend college and make a career change.
   
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 enlisted in the Regular Army on 30 October 1985.  At the time, the applicant was 19 years of age.  Upon completion of training, he was awarded military occupational specialty 64C (Motor Transport Operator).

3.  On 17 June 1986, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty.  His punishment consisted of 14 days of restriction and 14 days of extra duty.

4.  On 6 January 1987, the applicant received NJP under Article 15, UCMJ, for being drunk while on guard duty.  His punishment consisted of reduction to private/pay grade E-2 (suspended until 5 April 1987), 14 days of extra duty, and
7 days of restriction.  On 6 March 1987, the suspension of the punishment of reduction to private/pay grade E-2 was vacated.

5.  On 3 April 1987, the applicant received NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty, failing to obey a lawful order, and being drunk while on guard duty.  His punishment consisted of reduction to private/pay grade E-1 (suspended until 6 October 1987), 14 days of restriction, and 14 days of restriction.

6.  A DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 14 May 1987, shows the applicant appeared before the Bullitt County District Court, Kentucky, on 8 May 1987, where he pled guilty to the charge of theft by deception; was fined a total of $234.80; and sentenced to
10 days in the county jail, which was probated for two years.

7.  On 15 June 1987, 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 the commander's judgment that the applicant would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  The commander noted the circumstances forming the basis for the initiation of the separation proceedings were likely to continue to recur.  The applicant was advised of his rights and the separation procedures involved.

8.  On 15 June 1987, the applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

	a.  He acknowledged that 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 discharge under honorable conditions was issued to him.

   c.  The applicant acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded.

	d.  He requested representation by counsel and elected not to submit statements in his own behalf.

	e.  The applicant and his legal counsel placed their signatures on the document.

9.  On 16 June 1987, the company commander recommended the applicant be discharged from the U.S. Army under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-7, for unsatisfactory performance.

10.  On 22 June 1987, the lieutenant colonel serving as the special court-martial convening authority, and 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's service be characterized as general under honorable conditions.

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 29 June 1987 under the provisions of Army Regulation 635-200, chapter 13, and his service was characterized as under honorable conditions (general).  At the time he had completed 1 year and 8 months of net active service during the period of service under review.

12.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

13.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general under honorable conditions discharge should be upgraded to an honorable discharge because he was young and foolish; he believed that his discharge would be automatically changed to an honorable discharge six months after his separation from the Army; and he would like to qualify for government benefits.

2.  Considering that the applicant had demonstrated the capacity for honorable service by the completion of training and his advancement to pay grade E-3, his contention that he was young and foolish is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Thus, the applicant's contention that he was young and foolish is not sufficiently mitigating to warrant relief.  

3.  Records show the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, 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.  There is no U.S. Army regulation or policy that automatically changes the character of service of a former service member's discharge.  In addition, there is no evidence of record, and the applicant fails to provide sufficient evidence, that shows he was advised that his under honorable conditions discharge would be changed to an honorable discharge within six months of his discharge from the U.S. Army.  In fact, the evidence of record shows the applicant acknowledged he understood that if he received a character of service which was less than honorable, he could apply [emphasis added] to the ADRB or ABCMR for upgrade of his discharge.  Therefore, the evidence of record fails to substantiate the applicant's claim.

5.  The evidence of record shows that during the applicant's period of military service under review he received NJP on three occasions and he pled guilty to a civilian charge of theft by deception.  Thus, the evidence of record shows that the applicant's record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

6.  As a matter of information, the ABCMR does not upgrade a former Soldier's discharge solely to enhance his or her eligibility for veteran's benefits.

7.  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.



      _______ _ 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)                                         AR20090013973



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ABCMR Record of Proceedings (cont)                                         AR20090013973



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