IN THE CASE OF:	

		BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090017949 


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 an upgrade of his general discharge under honorable conditions to an honorable discharge.

2.  The applicant states that he was young and his actions were as a result of his youth. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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, in pay grade E-1, on 5 February 1980 for a period of 4 years.  He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 63H (Automobile Mechanic).  His MOS was later changed to 63W (Wheeled Vehicle Repair).

3.  On 17 February 1981, the applicant received nonjudicial punishment (NJP)
for making a false statement in which he stated that he had gotten marijuana from his brother, a statement that he knew to be false, and wrongfully possessing marijuana.  His imposed punishment was a forfeiture of $130.00 pay, 
14 days of extra duty, and restriction (suspended until 20 June 1981).

4.  The applicant received informal counseling by his squad leader for missing morning formation on 3 January 1982.  

5.  On 13 July 1982, the applicant received informal counseling by his team chief/squad leader for being absent from his place of duty.  The applicant's team chief stated the applicant has a tendency of walking away from his job without authorization.  

6.  The applicant received NJP on 12 October 1982, for being disrespectful in language towards his superior noncommissioned officer.  His imposed punishment was a reduction to pay grade E-2, a forfeiture of $147.00 pay, and
14 days of extra duty and restriction.  

7.  On 8 November 1982, the applicant received a mental status evaluation.  He was found to be mentally responsible and administratively cleared for separation action. 

8.  On 24 November 1982, the unit commander recommended that the applicant be barred from reenlistment.  The commander stated the applicant could not adapt to the military environment and that he exhibited behavior unsuitable for military service.   

9.  On 29 November 1982, the applicant received NJP for violating a general regulation by possessing two knives longer than 3 inches.  His punishment was a reduction to pay grade E-1, a forfeiture of $131.00 pay, and 7 days of extra duty and restriction.

10.  On 15 December 1982, the battalion commander approved the applicant's bar to reenlistment.  

11.  On 20 January 1983, the applicant’s unit commander notified him, in effect, that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The unit commander stated the applicant continuously displayed an apathetic and antagonistic attitude, despite the efforts made by the chain of command.  He also stated the applicant had no potential for retention on active duty.  Further retention on active duty would create serious disciplinary problems or a hazard to the military mission or to the individual.  

12.  On the same date, the applicant acknowledged receipt of the unit commander's notification and the fact that he had been counseled regarding the basis of the contemplated separation action, its effects, and the rights available to him.  The applicant was also informed that if he were issued a general discharge under honorable conditions he could expect to encounter substantial prejudice in civilian life.  Following his consult with legal counsel, the applicant elected not to submit a statement.

13.  On 28 January 1983, the separation authority approved the commander's recommendation and directed that the applicant be separated under the provisions of Army Regulation 635-200, chapter 13 with a General Discharge Certificate and that he not be transferred to the Individual Ready Reserve. 

14.  The applicant was discharged, on 18 February 1983, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with service characterized as general under honorable conditions, in pay grade E-1.  He was credited with completing 3 years and 14 days of net active service.

15. 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.




16.  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.

17.  There is no evidence in the available records that indicate the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS: 

1.  The applicant's contention that his general discharge under honorable conditions should be upgraded to an honorable discharge was carefully considered and was determined to lack merit. 

2.  The available records show the applicant had multiple disciplinary infractions. His chain of command imposed a bar to reenlistment against him as a rehabilitative measure to encourage him to perform his duties in a military manner and to attain the high standards demanded of him as a Soldier.  However, the applicant resisted all rehabilitative efforts made by his chain of command.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable discharge.

4.  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 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)                                         AR20090017949



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090017949



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1