BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090018670 


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 states that he was charged for an incident that resulted in an Article 15 and he was ultimately discharged from the service.  He further states that he was on his second enlistment and he only received one Article 15 and he did not have a pattern of undesirable behavior.  He states that this was his first disciplinary action and it should not have led to a general discharge or even a threat of a court-martial.

3.  The applicant provides no additional documenting evidence in support of this case.

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 he enlisted in the Regular Army on 29 August 1978 for a period of 3 years.  He completed the required training and he was awarded military occupational specialty (MOS) 11B (Infantryman).  Records further show that he reenlisted on 3 March 1981 and he served continuously until his discharge on 9 May 1984.  The highest rank/grade he attained while serving on active duty was specialist (SP4)/E-4.

3.  On 17 October 1983, the applicant received a DA Form 4856-R (General Counseling Form) that addressed various infractions, such as being uncontrollably intoxicated, shoving two noncommissioned officers (NCO's), and urinating on the snack room floor.

4.  The applicant's service record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions for the offenses indicated:

	a.  26 October 1983, for assaulting his superior NCO on or about 1 October 1983, three specifications of disobeying a lawful order from three noncommissioned officers on or about 1 October 1983, being drunk and disorderly in command an or about 1 October 1983, and wrongfully urinating on the floor of the unit's snack room.  His punishment included reduction to private first class (PFC)/E-3, forfeiture of $381.00 pay per month for two months (suspended), and extra duty and restriction for 45 days.

	b.  25 January 1984, for unlawfully assaulting a female [his spouse] by pulling her to the ground and for being drunk and disorderly in command.  His punishment included reduction to private (PV2)/E-2, forfeiture of $334.00 pay per month for two months, and extra duty and restriction for 45 days.

5.  In January 1984, the applicant received a DA Form 4856-R that addressed various infractions such as having a hard time following the chain of command and lack of judgment due to the use of alcohol.

6.  On 30 March 1984, the unit commander notified the applicant of his intent to initiate separation action on him under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for 

unsatisfactory performance.  The unit commander stated his reason for taking the action was the applicant's steadfast rejection of all attempts at rehabilitation and his proven pattern of unsatisfactory military discipline as evidenced by his Article 15 and counselings.

7.  On 2 April 1984, the applicant consulted with legal counsel and he was advised of the basis of the contemplated separation action, its effects, and of the rights available to him.  The applicant waived his rights to be considered by an administrative separation board, personal appearance before a board of officers, consulting counsel, and representation by military counsel.  The applicant acknowledged that he understood he could encounter substantial prejudice in civilian life if he received a general discharge.  On 3 April 1984, the applicant submitted a statement in his own behalf.  The applicant states, in effect, that he should have received an honorable discharge.  He further states that he was not on duty or in military uniform when the incidents occurred.  The applicant continues that he feels he had been punished enough for the wrong he was accused of and he would appreciate an honorable discharge.

8.  On 25 April 1984, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-200, paragraph 13-2b, with a General Discharge Certificate.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged on 9 May 1984 with a general discharge in accordance with the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  He had served 5 years, 8 months, and 11 days of total active service.

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

10.  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.

11.  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 contention that his general discharge should be upgraded to honorable was carefully considered; however, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant's unit commander notified him of the contemplated separation action and that he consulted with legal counsel.  It further shows that the applicant was advised of the basis for the contemplated separation action and its possible effects.

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record shows the applicant’s separation was based upon his unsatisfactory performance, his lack of potential for further military service, his pattern of undisciplined behavior, and his unresponsiveness to attempts at rehabilitation would not produce the quality Soldier desired by the Army.

5.  The applicant’s service record shows instances of disobeying a lawful order, two instances of being drunk and disorderly, urinating on the floor, and pulling a female to the ground.  This conduct does not meet acceptable standards for Army personnel.  Thus, the applicant is not entitled to an honorable discharge.

6.  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)                                         AR20090018670



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ABCMR Record of Proceedings (cont)                                         AR20090018670



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