IN THE CASE OF:	  

		BOARD DATE:	    8 June 2010

		DOCKET NUMBER:  AR20090020916 


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 discharge to an honorable discharge.

2.  The applicant states he was discharged under honorable conditions and would like it upgraded so he may use the educational benefits.

3.  The applicant provides no 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 enlisted in the Regular Army on 12 August 1987 for a period of four years.

3.  On 13 December 1989 and 12 April 1990, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to at the time prescribed to his appointed place of duty (27 November and 29 November 1989); drinking under the legal age of 21; and disobeying a lawful command from his senior commissioned officer.

4.  On various occasions between September 1989 and March 1990, the applicant received numerous adverse counseling statements regarding the following:

* Absent from formation
* Found to be intoxicated
* Disrespectful towards noncommissioned officers
* Failure to attend physical training
* Failure to attend a scheduled Alcohol & Drug Abuse Prevention and Control Program (ADAPCP) Track II counseling session

5.  The company commander notified the applicant of his proposed recommendation to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  He was advised of his rights.  He acknowledged notification of the separation action, consulted with legal counsel, and submitted statements in his own behalf.  His statements are not available for review.

6.  The separation authority waived rehabilitation and directed separation with a characterization of service of under honorable conditions.

7.  The applicant was accordingly discharged on 23 July 1990 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He completed 2 years, 11 months, and 12 days of active military service.

8.  The applicant’s service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.

9.  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.

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 applicant requests that his general discharge upgraded so he may use the educational benefits.  However, this issue is not sufficiently mitigating to warrant relief in this case.

2.  The applicant's administrative separation under the provisions of Army Regulation 635-200, chapter 13, was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The applicant's service record shows he received two Article 15s and numerous adverse counseling statements.  Although he may now feel that his general discharge should be upgraded, his service does not meet the standards of acceptable conduct and performance of duty to warrant a fully honorable discharge.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  The applicant has failed to show through the evidence submitted or the evidence of record that the characterization of service issued to him was in error or unjust.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


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)                                         AR20090020916



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ABCMR Record of Proceedings (cont)                                         AR20090020916



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