IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100000965 


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states the record is in error in comparison to his full military service.  He was led to believe his discharge would be upgraded.

3.  The applicant did not provide any additional 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 records show he enlisted in the Regular Army on 25 March 1981 and he held military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's records show he served in Germany from on or about 8 August 1981 to on or about 3 February 1983.  His awards and decorations were the Army Service Ribbon, Overseas Service Ribbon, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  On 23 September 1984, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully appropriating a Government Treasury Check and cashing it.  His punishment consisted of a reduction to private first class (PFC)/E-3 (suspended for 90 days), forfeiture of $125.00 pay, and 14 days of restriction and extra duty.

5.  On 29 September 1983, the suspension of the punishment of reduction to PFC/E-3 was vacated and ordered executed after he failed to report to his appointed place of duty.

6.  On 23 November 1983, he again accepted NJP under the provisions of Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty and wrongfully using marijuana.  His punishment consisted of a reduction to private (PV2)/E-2 (suspended), forfeiture of $100.00 pay, and 7 days at the correctional custody facility.

7.  On 18 January 1984, the suspension of the punishment of reduction to PV2/E-2 was vacated and ordered executed after he again tested positive for marijuana.

8.  The applicant's record contains an extensive history of counseling by different members of his chain of command for various infractions including poor attitude, poor performance, failure to follow instructions, insubordination, personal appearance, and substandard performance.

9.  On 8 February 1984, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, by reason of unsatisfactory performance.

10.  On 8 February 1984, he acknowledged receipt of the letter of notification of separation action in accordance with Army Regulation 635-200, chapter 13.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights.  He further indicated he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement in his own behalf. 

11.  On 8 February 1984, his immediate commander initiated a recommendation for separation against him under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  The immediate commander remarked that the applicant failed to obey lawful orders when told to do so and possessed a poor attitude.  Based on his past performance, it did not seem likely he would be able to effectively perform his duties or have potential for advancement or leadership.  

12.  On 8 February 1984, the separation authority approved the applicant's discharge from the Army under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and directed his service be characterized as under honorable conditions (general).  On 14 February 1984, the applicant was accordingly discharged.  

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged for unsatisfactory performance in accordance with Army Regulation 635-200, chapter 13, with a character of service as under honorable conditions (general).  This form also shows he completed 2 years, 10 months, and 20 day of active service.

14.  There is no indication in his records he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations. 

15.  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.

16.  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 an honorable discharge.

2.  The evidence of records shows that the applicant's duty performance was tarnished by two instances of NJP and an extensive history of negative counseling.  Accordingly, his chain of command initiated separation action against him.  The evidence of record further shows this discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.

3.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

4.  There is no evidence in the available records and the applicant did not provide any evidence that he was led to believe his discharge would be upgraded.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to 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)                                         AR20100000965



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ABCMR Record of Proceedings (cont)                                         AR20100000965



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