BOARD DATE:	  22 April 2010

		DOCKET NUMBER:  AR20090017307


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 an honorable discharge.

2.  The applicant states that there was no reason for him to receive a general discharge.

3.  The applicant provides no additional documentary evidence 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 military records show he enlisted in the Regular Army on 20 October 1982.  He was awarded the military occupational specialty of 
M48-M60 armor crewman.  The highest rank/grade he held during his tenure of service was private first class/E-3.  The applicant's records do not show any significant acts of achievement or valor during his military service.

3.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on three occasions for dereliction of his duties, failing to report at the prescribed time to his place of duty, and for knowingly and wrongfully using the controlled substance of marihuana.

4.  The applicant's records contain numerous performance counseling statements indicating he had a problem with reporting at the prescribed time to his place of duty and testing positive on a urinalysis.  On 5 April 1984, the applicant's commander notified him of his intent to recommend his discharge because he was a constant disciplinary problem and any further attempts at rehabilitation would not produce the quality of Soldier desired by the Army.

5.  The applicant acknowledged he had been advised by his consulting counsel of the basis for his contemplated separation for unsatisfactory duty performance under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Separations), and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  His records show he did not choose to make a statement on his own behalf.

6.  On 3 May 1984, the separation authority approved the recommendation for separation under the provisions of chapter 13, Army Regulation 635-200, and it was directed that he be furnished a General Discharge Certificate.

7.  He was discharged accordingly on 9 May 1984.  He completed 1 year, 6 months, and 20 days of active service.

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  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 likely 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.

10.  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's records indicate he was counseled on several occasions in regards to his repeated failure to report at the prescribed time to his place of duty and for testing positive on a urinalysis.  His records show he accepted NJP on three occasions.  His records indicate he was a constant disciplinary problem and any further attempts at rehabilitation would not produce the quality Soldier desired by the Army.  Such conduct would certainly warrant an administrative separation from the Army.

2.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

3.  Documents contained in the applicant's records confirm that his rights were protected throughout the discharge process.

4.  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)                                         AR20090017307



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ABCMR Record of Proceedings (cont)                                         AR20090017307



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