IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090014025 


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, under honorable conditions be upgraded to honorable.

2.  The applicant states that he was informed his discharge would be upgraded after a period of 2 years if he had no legal or criminal incidents.

3.  The applicant provides no additional documentation 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.  On 17 August 1983, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).  He was subsequently assigned to Fort Ord, California.

3.  On 10 May 1984, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) for 6 days.  His punishment included reduction to pay grade E-1, a forfeiture of $139.00 pay for 1 month, and 7 days of confinement.

4.  On 6 July 1984, the applicant was referred for substance abuse counseling.  The counselor stated that an assessment determined the applicant had a definite substance abuse problem.  The applicant had no desire to abstain from either alcohol or drug use and he had no desire to remain in the Army.  Additionally, it was determined that the applicant had no rehabilitation potential and the recommendation was that he be separated under the provisions of Army Regulation 635-200 (Personnel Separations) chapter 13, for unsatisfactory performance.

5.  On 13 July 1984, the applicant underwent a mental status evaluation.  The applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He had the mental capacity to understand and to participate in the separation processing.

6.  On 20 September 1984, the applicant received NJP for dereliction of duty by sleeping.  The punishment included 14 days of restriction and extra duty.

7.  On 1 October 1984, the applicant received NJP for failure to his appointed place of duty at the time prescribed.  His punishment included a forfeiture of $143.00 pay for 1 month and 14 days of extra duty.

8.  On 25 October 1984, the applicant's commander notified the applicant of his intension to separate him from the service under the provisions of Army Regulation 635-200, paragraph 13-2 for unsatisfactory performance.  The commander based his action on the applicant's three NJP's and poor work performance and attitude.  The applicant acknowledged receipt of this notification on 26 October 1984.




9.  On 26 October 1984, the applicant’s commander initiated a recommendation to separate him from the service under the provisions of Army Regulation
635-200, chapter 13, for unsatisfactory performance.  The commander stated the applicant had been counseled on several occasions and showed no improvement.

10.  On 1 November 1984, the applicant consulted with counsel and elected not to make a statement in his own behalf.

11.  On 9 November 1984, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate.

12.  Accordingly, he was discharged under honorable conditions on 
19 November 1984.  He had completed 1 year, 2 months and 27 days of creditable active service and he had 6 days of lost time due to being AWOL.

13.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 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.

15.  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 contends that he was told his discharge would be upgraded after a period of 2 years provided he had no legal or criminal incidents.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

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

4.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

5.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from the military.

6.  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.

7.  In view 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)                                         AR20090014025



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ABCMR Record of Proceedings (cont)                                         AR20090014025



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