BOARD DATE:	  February 25, 2010

		DOCKET NUMBER:  AR20090017505 


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 under honorable conditions discharge be upgraded to fully honorable.

2.  The applicant states it has been 25 years and he would like to go back to school.  He has applied for the IVG (Illinois Veteran Grant) but was ineligible due to his discharge.  He needs help so he may be able to continue his education to get a job and provide for his family.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 7 November 1984, 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's records show he enlisted in the Regular Army for a period of 4 years on 21 July 1981.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  The highest rank/grade he attained during his military service was sergeant /E-5.

3.  The applicant's records reveal a history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows.

	a.  on 6 September 1984, for negligently failing to ensure that the military vehicle in which he was the senior occupant maintained the appropriate speed limit on or about 21 August 1984.  His punishment consisted of a reduction to specialist/E-4 (suspended for 3 months), a forfeiture of $250.00 pay per for 1 month, 45 days extra duty, and 45 days of restriction.  Additionally, on 22 September 1984, the suspension of the punishment of reduction to E-4 was vacated and the unexecuted portion was ordered executed; and

	b   on 13 October 1984, for failing to go at the time prescribed to his appointed place of duty on or about 22 September 1984, violating a general regulation in that he was absent from camp without an authorized pass on or about 22 September 1984, and breaking restriction on or about 22 September 1984.  His punishment consisted of a reduction to private/E-2, a forfeiture of $300.00 pay per month for 1 month, 45 days of extra duty, and 45 days of restriction.

4.  On 25 October 1984, the applicant's immediate commander notified the applicant of his intent to separate him from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations) by reason of unsatisfactory performance.  The immediate commander cited the applicant's record of substandard performance and dereliction in the performance of his duties as well as failing to make accountability formation and not conforming his behavior to military standards.  

5.  On 25 October 1984, the applicant acknowledged receipt of the letter of notification of separation action in accordance with chapter 13 of Army Regulation 635-200 and subsequently consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights.  He further indicated that he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement in his own behalf.

6.  On 25 October 1984, the applicant's immediate commander initiated a recommendation for separation of the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsatisfactory performance.

7.  On 26 October 1984, the applicant's intermediate commander recommended approval of the applicant's discharge and a waiver of the rehabilitative transfer requirements.   

8.  On 31 October 1984, the separation authority approved the applicant's discharge from the Army under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsatisfactory performance and directed his service be characterized as under honorable conditions (general).  Accordingly, on 7 November 1984, the applicant was discharged.  The DD Form 214 he was issued confirms he was discharged for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200 with a character of service as under honorable conditions (general).  This form also shows that he completed 3 years, 3 months, and 17 days of creditable active military service.

9.  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.  A general or honorable discharge was considered appropriate.

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 evidence of record shows that the applicant displayed a pattern of unsatisfactory performance as evidenced by his multiple NJPs and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards.  Accordingly, his immediate commander initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  There does not seem to be an error or an injustice in his discharge. 

2.  The evidence of record further shows that the applicant's separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to upgrade his discharge.

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)                                         AR20090017505



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ABCMR Record of Proceedings (cont)                                         AR20090017505



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