BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090014287 


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, in effect, that his discharge should be upgraded because he does not have a criminal record.  The applicant concludes that enough time has passed to justify an upgrade of his discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of his DD Form 257A (General Discharge Certificate) in support of this 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 enlisted in the Regular Army (RA) and he entered active duty on 3 January 1984.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded military occupational specialty (MOS) 12B (Combat Engineer).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/
E-3.  However, at the time of separation he held the rank/grade of private (PV1)/E-1.

3.  A thorough review of the applicant's record revealed 16 DA Forms 4856 (General Counseling Form) documenting adverse counseling sessions regarding his disciplinary infractions such as poor duty performance, sleeping during duty hours, poor attitude, loss of his protective mask, not shaving, being late, missing guard mount, disobeying a lawful order, failure to follow instructions, and failing to assist his peers in preparation for an inspection.

4.  The applicant's record contains a DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 13 June 1985, which shows he was disciplined for violating Article 86 of the UCMJ by failing to be at his appointed place of duty.

5.  The applicant's record contains a DA Form 4126-R (Bar to Reenlistment Certificate), dated 13 August 1985, which shows the applicant's unit commander initiated action to have him barred from reenlistment due to his disciplinary history.  The applicant acknowledged that he was furnished a copy of his commander's recommendation to bar him from reenlistment and that he had been counseled and advised of the basis for this action.  He also indicated that he did not desire to make a statement in his own behalf.  On 13 August 1985, the appropriate authority approved the applicant's Bar to Reenlistment Certificate.

6.  The applicant's record contains a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), initiated on 29 August 1985, which shows he violated Article 86 of the UCMJ by absenting himself without authority from his unit on
16 August 1985.

7.  The applicant's record contains a DA Form 2627, initiated on 9 September 1985, which shows he violated Articles 92 and 107 of the UCMJ by failing to obey a lawful order from a noncommissioned officer and by making false entries on an official document.

8.  On 25 September 1985, the applicant’s unit commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, paragraph 13-2, for unsatisfactory performance. 
The commander cited the applicant's disciplinary history as the basis for this action.  The unit commander also informed the applicant that he could receive a general, under honorable conditions discharge and be issued a General Discharge Certificate.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, and to waive these rights in writing.

9.  On 11 October 1985, having been advised by consulting counsel, the applicant acknowledged receipt of the unit commander's notification and the fact that he had been counseled regarding the basis for the contemplated separation, its effects, and the rights available to him.  The applicant was also informed that if he was issued a general, under honorable conditions discharge, he could expect to encounter substantial prejudice in civilian life.  The applicant elected not to make any statements in his own behalf.

10.  On 14 October 1985, the applicant’s unit commander recommended that the applicant be separated from the Army under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory duty performance.  The unit commander cited the applicant's disciplinary history as the basis for this action.

11.  On 18 October 1985, the separation authority directed the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-2, and that he be issued a General Discharge Certificate.

12.  On 7 November 1985, the applicant was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 issued to him at the time shows that he received an "Under Honorable Conditions" characterization of service.  Block 25 (Separation Authority) shows that he was discharged under the provisions of Army Regulation 635-200, chapter 13.  Block 26 of this form shows he was assigned a Separation Program Designator code of "JHJ."  Block 28 (Narrative Reason for Separation) shows "Unsatisfactory Performance."

13.  There is no evidence in the available record that indicates the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

14.  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.

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's contention that his general, under honorable conditions discharge should be upgraded to an honorable discharge was carefully considered and determined to lack merit.

2.  The record shows the applicant had multiple disciplinary infractions.  In spite of his indiscipline, the applicant's chain of command was willing to allow the applicant to remain on active duty and continue to serve.  Evidence shows the applicant was not responsive to the rehabilitative efforts of his command.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his general, under honorable conditions discharge to an honorable discharge.

4.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

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.



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)                                         AR20090014287



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ABCMR Record of Proceedings (cont)                                         AR20090014287



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