IN THE CASE OF:	

		BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090021235 


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 his years as a productive and exemplary citizen warrant upgrade of his discharge and he has proven by his actions that he is a leader in his community and a mentor to others.

3.  The applicant provides a copy of his resume.

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 the following:

* He enlisted in the Regular Army (RA) on 15 June 1982.
* On 13 September 1983, he was awarded military occupational specialty (MOS) 100B (Utility Observation Helicopter Pilot), appointed as a Reserve Warrant Officer of the Army in the grade W-1, and ordered to active duty.
* He was assigned to the 503d Aviation Battalion in Germany as an aviator.

3.  On 21 December 1984, the Commander, Headquarters, Hanau-North
Subcommunity, initiated action to evict the applicant from quarters in the Bischofsheim Housing Area.  On 13 June 1985, the applicant received a General Officer Letter of Reprimand (GOLOR) from the Commander, 3d Armored Division, for failing to clear his government quarters as ordered.

4.  On 25 July 1985, the applicant accepted nonjudicial punishment (NJP) administered by a general officer under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty.  His punishment included a forfeiture of $608.00 per month for two months and a reprimand for misconduct.  He did not appeal the imposed punishment.

5.  On 18 July 1985, the applicant's commander requested convening a Flight Evaluation Board (FEB) to determine if the applicant was qualified for continued aviation service.  The request shows the following:

* The applicant had been relieved of all extra duties for failing to perform and failing to follow direct orders.
* He failed his instrument renewal diagnostic evaluation after being given 
3 weeks to prepare.
* He consistently displayed insufficient motivation, a lethargic attitude, and general lack of initiative in all areas of his personal and professional life.
* He had been counseled numerous times, received a GOLOR, and a general officer level Article 15.

6.  On 13 August 1985, the applicant's immediate commander informed him he was initiating action to eliminate him from the Army due to substandard performance of duty, misconduct, and dereliction of duty.





7.  On 4 December 1985, the applicant tendered his resignation from the Army in lieu of further elimination proceedings.  He acknowledged the following:

* He had been advised of his right to counsel
* He understood the implications of his voluntary action
* He could be furnished an Honorable; General, Under Honorable Conditions; or an Under Other Than Honorable Conditions Discharge Certificate

8.  The applicant's immediate commander recommended approval of his resignation and recommended he receive a general, under honorable conditions discharge.

9.  On 29 January 1986, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows:

* In item 24 (Character of Service), under honorable conditions
* In item 28 (Narrative Reason for Separation), misconduct, moral or professional dereliction

10.  The applicant provides a copy of his resume which shows he has been employed as a middle school teacher since 2000.

11.  Army Regulation 635-120 (Officer Resignations and Discharges), chapter 4 (Resignation in Lieu of Elimination), in effect at the time, states an officer who has been recommended for elimination from the service by a general court-martial convening authority may tender a resignation in lieu of elimination action.   An officer whose resignation is accepted under these provisions may be issued an Honorable, General, or Under Other than Honorable Conditions Discharge Certificate.  An Honorable Discharge Certificate is issued when an officer's discharge is based solely upon substandard performance of duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his general, under honorable conditions discharge was carefully considered and not supported by the evidence.

2.  The record shows the applicant received a GOLOR and a general officer level Article 15 during his service.  It also shows his immediate commander initiated action to eliminate him from the Army due to substandard performance of duty, misconduct, and dereliction of duty.

3.  Discharges under the provisions of Army Regulation 635-120, chapter 4 are voluntary requests for discharge in lieu of elimination.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  Item 28 of the applicant's DD Form 214 shows he was separated for misconduct, moral or professional dereliction.  Army Regulation 635-120 states an Honorable Discharge Certificate is issued when an officer's discharge is based solely upon substandard performance of duty.  The applicant received a general, under honorable conditions discharge which was appropriate in light of the basis of the narrative reason for his discharge.

5.  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, the applicant is not entitled to an honorable discharge.

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)                                         AR20090021235



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ABCMR Record of Proceedings (cont)                                         AR20090021235



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