IN THE CASE OF:	  

		BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090017515 


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 did not submit a statement in his own behalf.

3.  The applicant did not submit any 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's DD Form 214 shows that he enlisted in the Regular Army (RA) on 20 January 1982.

3.  The applicant's record documents no acts of valor or significant achievement.

4.  The applicant’s military record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 27 August 1982 for not shaving, disobeying a lawful order, and failing to go at the prescribed time to his appointed place of duty.

5.  The applicant’s military record reveals a disciplinary history that includes his acceptance of NJP on 16 December 1982 for sleeping in his room while he was on guard duty.

6.  The applicant's record contains 17 DA Forms 4856 (General Counseling Forms) that shows he was counseled from 14 July 1982 to 2 August 1983 for reasons to include his job performance, not opening his room door, missing formation, lack of motivation, not shaving, and not going to his appointed place of duty.

7.  On 29 August 1983, the applicant’s unit commander notified him that he was initiating action to separate him under the provisions of Army Regulation
635-200, paragraph 13, for unsatisfactory performance in his duties and numerous Article 15's and negative counseling statements.

8.  A Standard Form (SF) 88 (Report of Medical Examination), dated 19 August 1983, and a DA Form 3822-R (Mental Status Evaluation), dated 30 August 1983, cleared the applicant for separation.

9.  On 8 September 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated action and the rights available to him.  The applicant waived his right and did not submit a statement in his own behalf.  He acknowledged that he understood that he would have less than 6 years of total active and/or reserve military service at the time of separation; therefore, he was not entitled to have his case heard by a board of officers.  He also understood that he may expect to encounter substantial prejudice in civilian life if a less than honorable discharge was issued to him.

10.  On 29 August 1983, the appropriate authority approved the applicant’s separation recommendation, waived further rehabilitative efforts, and directed the issuance of a general, under honorable conditions discharge.  On 15 September 1983, the applicant was discharged in pay grade E-2 under the provisions of Army Regulations 635-200, paragraph 13, by reason of unsatisfactory performance.  He had completed 1 year, 7 months, and 26 days of net active service.
11.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

12.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  A review of the applicant’s record of service shows that he received two Article 15's and seventeen counseling statements during the first year of his enlistment commitment.  His overall record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant a fully honorable discharge.

2.  The evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.

3.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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 Board determined that 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)                                         AR20090017515



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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