IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100000300 

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 that his general discharge be upgraded to honorable. 

2.  The applicant states he was wrongly discharged.  He never got into any trouble and was never court-martialed.  He was planning to reenlist.

3.  The applicant provides no additional documentation 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.  On 8 July 1982, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman). 

3.  On 1 November 1982, the applicant was assigned to the 2nd Battalion, 36th Infantry Regiment, located in the Federal Republic of Germany.  He served with this unit until he returned to the United States on 29 April 1984.

4.  On 7 June 1984, the applicant was assigned to the 2nd Battalion, 327th Infantry Regiment, Fort Campbell, Kentucky. 

5.  On 1 October 1984, the applicant was advanced to specialist four, pay grade E-4.

6.  The applicant was referred to mental health based on observations while he was on special duty.  On 9 November 1984, the applicant underwent a mental status evaluation.   The applicant's behavior was hostile.  He was fully alert and oriented and displayed a flat mood.  His thinking process was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was capable of participating in the separation process.  It was determined the applicant was experiencing an adjustment reaction to the reasonable demands of the military.  He did not possess the essential characteristics and emotional strengths necessary to be an effective Soldier.  Rehabilitation potential was poor.  It was recommended that the applicant be considered for administrative action, to include separation.

7.  On 8 January 1985, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He based his recommendation on the results of the applicant's mental status evaluation due to the fact that all the attempts that had been taken to make him a useful Soldier had failed.  

8.  On 8 January 1985, the applicant consulted with counsel and elected not to make a statement in his own behalf.

9.  On 9 January 1985, the appropriate authority approved the recommendation and directed that he be issued a DD Form 256A (General Discharge Certificate). 

10.  Accordingly, he was discharged under honorable conditions on 17 January 1985.  He had completed 2 years, 6 months and 10 days of creditable active duty service.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.


12.  Army Regulation 635-200 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, and provides, in pertinent part, that commanders will separate a member 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.

13.  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 contends that his general discharge should be upgraded to honorable because he was wrongly discharged. 

2.  The record does not provide an indication into the matters that occurred which caused a change in his behavior between his 1 October 1984 advancement to  E-4 and his referral for a mental status evaluation on 9 November 1984.  However, the applicant elected not to make a statement in his own behalf concerning this possible contradiction when provided the opportunity to do so.

3.  The evidence of record shows that the applicant was referred to mental health, only a few weeks after being promoted, based on observations while he was on special duty.  It was determined the applicant was experiencing an adjustment reaction to the reasonable demands of the military.  He did not possess the essential characteristics and emotional strengths necessary to be an effective Soldier.  Rehabilitation potential was poor.  It was recommended that the applicant be considered for administrative action, to include separation.

4.  The commander based his recommendation on the results of the applicant's mental status evaluation and all of the failed attempts taken to make him a useful Soldier.  

5.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

6.  The type of discharge directed and the reasons were appropriate considering all of the facts of the case.
7.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

8.  Based on his poor performance of duty the applicant's service clearly does not meet the acceptable standards for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

9.  In order to justify correction of a military record the applicant must show, 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.

10.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100000300



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ABCMR Record of Proceedings (cont)                                         AR20100000300



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