IN THE CASE OF:	

		BOARD DATE:	  9 March 2010

		DOCKET NUMBER:  AR20090016398 


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 under honorable conditions discharge be upgraded to fully honorable.

2.  The applicant states that he was never given counsel on how to handle his situation and that he was 19 years of age at the time.

3.  The applicant provides no additional documents 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 10 August 1983 at 18 years old.  He completed training as a fabric repair specialist and his highest grade attained was private first class, E-3.
3.  On 14 December 1984, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for disobeying a lawful order from a warrant officer.

4.  On various occasions between June 1984 and March 1985, the applicant received numerous adverse counseling statements for the following:  failure to follow instructions, disrespectful to a noncommissioned officer, late for formation, absent from formation, absent from place of duty, failure to use the chain of command, and leaving his appointed place of duty.

5.  On 9 May 1985, the applicant accepted NJP under Article 15 for failing to go to his appointed place of duty.

6.  On 20 May 1985, the unit commander notified the applicant of his proposed recommendation to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations), chapter 13, for unsatisfactory performance.  He was advised of his rights.  He acknowledged notification of the separation action, consulted with legal counsel, waived consideration of his case by an administrative separation board, and did not submit statements in his own behalf.

7.  On 3 June 1985, the appropriate separation authority waived a rehabilitative transfer; approved the separation action under the provisions of Army Regulation 635-200, chapter 13; and directed issuance of a General Discharge Certificate.

8.  Accordingly, the applicant was discharged from active duty on 4 June 1985 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He completed 1 year, 9 months, and 25 days of active military service with no lost time.

9.  On 16 January 1997, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge

10.  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, provided for separation due to unsatisfactory performance when in the commander's judgment the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation were 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was never given counsel on how to handle his situation.  However, his service records show he was counseled on numerous occasions regarding his misconduct during his tenure on active duty.

2.  The applicant also contends that he was 19 years of age at the time.  However, age is not sufficiently mitigating to warrant relief in this case.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-200, chapter 13, was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The applicant's service record shows he received two Article 15's and numerous adverse counseling statements.  Therefore, the applicant's record of service is not sufficiently meritorious to warrant a fully honorable discharge.

5.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for a fully honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general under honorable conditions.

6.  The applicant has failed to show through the evidence submitted or the evidence of record that the characterization of service issued to him was in error or unjust.  Therefore, there is no basis for granting his 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)                                         AR20090016398



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ABCMR Record of Proceedings (cont)                                         AR20090016398



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