BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090018371 


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 his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states he lacked counsel at the time of his discharge and had no opportunity to defend himself against the allegations made against him.  

3.  The applicant provides no documentary evidence 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 record shows that he initially enlisted in the United States Army Reserve (USAR) on 3 April 1980 and served in that status until 2 February 1982.  
3.  On 3 February 1982, the applicant enlisted in the Regular Army and entered active duty in that status.  He held and served in military occupational specialty 11C (Indirect Fire Infantryman), and private/E-2 (PV2/E-2) is the highest rank he attained while serving on active duty.  His record documents no acts of valor or significant achievement.  

4.  The applicant's record reveals a disciplinary history that includes his being barred from reenlistment on 6 October 1982, as a result of an incident of driving while intoxicated.   

5.  On 1 December 1982, a summary court-martial (SCM) found the applicant guilty of violating Article 134 of the Uniform Code of Military Justice (UCMJ) by wrongfully possessing marijuana on or about 1 December 1982.  The resultant sentence was a reduction to private/E-1 (PV1/E-1), forfeiture of $300.00, and 
30 days restriction.

6.  On 30 November 1983, the applicant was formally counseled by his first sergeant (1SG) concerning an alcohol-related incident that resulted in his having cuts to his hand that prevented him from performing his duties.  The 1SG also informed the applicant his conduct and the odor of alcohol suggested he had a drinking problem.  He finally warned the applicant he could be eliminated from the service if his poor conduct continued.  

7.  On 7 December 1983, the applicant underwent a mental status evaluation that showed the following:

* his behavior and thought content were normal
* he was fully alert and oriented
* he had an unremarkable mood
* his thinking process was clear
* his memory was good
* he was mentally responsible
* he met retention requirements
* he had the mental capacity to understand and participate in separation proceedings.


8.  The unit commander notified the applicant he was initiating action to separate him for unsatisfactory performance.  The unit commander cited the following reasons for taking the action:  

* Applicant's conduct since his assignment to the unit
* Applicant's inability to respect authority or conform with military standards
* Applicant's conduct both on and off duty were below that of the average Soldier
* Commander's belief the applicant could serve no useful purpose within the military. 

9.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects.  Subsequent to this counseling, he elected to make a statement in his own behalf.  This statement is not on file and there is no indication he actually submitted it prior to separation. 

10.  On 15 December 1983, the separation authority approved the applicant's separation, and directed he receive a GD, and directed he not be assigned to the Individual Ready Reserve.  On 21 December 1983, the applicant was discharged accordingly.

11.  Army Regulation 635-200 (Enlisted Separations) 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.  It provides for commanders to separate members 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. 

12.  The same regulation defines an HD as 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 contentions that his discharge should be upgraded to a HD because of a lack of counsel and being denied the opportunity to rebut the allegations against him were carefully considered.  However, the evidence is not sufficient to support these claims. 

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  The applicant consulted with legal counsel and was provided the opportunity to provide a statement in his own behalf at the time.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The applicant's misconduct clearly diminished the overall quality of his service below that meriting a fully honorable discharge and did not support the issue of an HD by the separation authority at the time and does not support an upgrade of his discharge now.  Therefore, it would not be appropriate to grant the requested relief. 

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit 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)                                         AR20090018371



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ABCMR Record of Proceedings (cont)                                         AR20090018371



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