BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090015089 


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 be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he wants his general discharge upgraded because he did not do anything to warrant a general discharge.  He goes on to state that he disagrees with the filing of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) in his records because he never disobeyed any order.  He also states that he did not sign the DA Form 2627, neither did the imposing commander. 

3.  The applicant provides a copy of an unsigned/incomplete DA Form 2627; a Letter of Appreciation, dated 10 May 1983; his Enlisted Evaluation Report with an ending date of April 1983; an Army Achievement Medal Certificate, dated 8 April 1983; and a copy of a Certificate of Appreciation, dated May 1983. 

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 24 May 1978 for a period of 4 years, training as an infantryman, assignment to the 2d Armored Division (2AD) and a cash enlistment bonus.  He successfully completed his training and was transferred to Fort Hood, Texas for assignment to the 2AD.  He was promoted to the rank of sergeant on 26 October 1980.

3.  On 23 November 1981, he reenlisted for a period of 6 years and a selective reenlistment bonus.

4.  On 19 January 1983, he was transferred to Korea for assignment to the 
2d Infantry Division as an assistant operations sergeant.

5.  On 31 October 1983, nonjudicial punishment (NJP) was imposed against the applicant by his battalion commander for willfully disobeying a lawful command from a lieutenant colonel to remain within the boundaries of Camp Casey and for failure to go to his appointed place of duty.  His punishment consisted of a reduction to the pay grade of E-4, a forfeiture of pay, extra duty and restriction.  The applicant appealed the punishment and his appeal was denied on 
23 November 1983.   The applicant's official records show that this DA Form 2627 was signed and initialed by the applicant and the imposing commander.

6.  On 28 November 1983, NJP was imposed against him for failure to go to his appointed place of duty.  His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay, extra duty and restriction.  He did not appeal the punishment.

7.  On 17 February 1984, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He cited as the basis for his recommendation that the applicant's performance of duty had been unsatisfactory and that he was unable to respect authority and conform to military standards.  He also cited that his conduct both on and off duty was far below that of an average Soldier.

8.  After consulting with defense counsel, the applicant waived his rights and elected to submit 26 enclosures in his behalf which consisted of copies of his awards, certificates of appreciation, school completion certificates, his Enlisted 
Evaluation Reports, and his military occupational specialty test scores. 

9.  On 21 February 1984, the appropriate authority approved the recommendation for discharge and directed that the applicant be furnished a General Discharge Certificate.

10.  Accordingly, on 1 March 1984, he was discharged under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance with a general discharge.  He had served 5 years, 9 months and 9 days of total active service.

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

12.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  Chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance if it was determined that the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A discharge under honorable conditions is normally considered appropriate.

13.  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.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s official records show that the DA Form 2627 cited by the applicant was in fact signed and initialed by him and the imposing commander.

4.  The applicant’s contentions and supporting documents were considered.  However, they are not sufficiently mitigating to warrant relief when compared to his overall record of service and his repeated offenses.  His service simply does not rise to the level of a fully honorable 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.  Therefore, in view of all 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)                                         AR20090015089



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ABCMR Record of Proceedings (cont)                                         AR20090015089



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