IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100007175 


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 his general discharge be upgraded to an honorable discharge.

2.  The applicant did not make any statements in support of his application.

3.  The applicant provides a copy of the "Member Copy" of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of
6 February 1984.

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 military personnel records show he enlisted in the Regular Army on 13 October 1981 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 13E (Cannon Crewman).

3.  On 30 January 1982, the applicant was assigned to the Howitzer Battery, 
3rd Squadron, 3rd Armored Cavalry Regiment at Fort Bliss, TX.

4.  The applicant received formal counseling on:

	a.  1 November 1983 - for missing formation

	b.  4 January 1984 - advised his job performance was totally unacceptable.  He was advised if he did not improve he would be eliminated from the service under the provisions of Chapter 13 of Army Regulation 635-200.

	c.  6 January 1984 - for his poor duty performance, lack of self-discipline and his inability to adapt to the military way of life.  He was advised if his duty performance and attitude  did not change he could be eliminated from the service under the provisions of Chapter 13 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

5.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 15 November 1983 and on 
11 January 1984, for being absent from his appointed place of duty, failure to obey a lawful order from a staff sergeant, and being disrespectful in language toward a staff sergeant.

6.  On 11 January 1984, the applicant received a local bar to reenlistment.

7.  On 24 January 1984, the applicant's commander notified the applicant that the commander was initiating action to discharge him under the provisions of Chapter 13 of Army Regulation 635-200 for his poor duty performance and his inability to adjust to military life.

8.  The commander's letter advised the applicant of his right to consult with a consulting counsel, to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of these rights at any time prior to the date the discharge authority directs or approves his discharge.  The commander advised him the least favorable characterization of service or description of separation he would receive as a result of this action was a general discharge under honorable conditions.

9.  On 24 January 1984, the applicant, after having been advised by counsel, submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of 
Chapter 13 of Army Regulation 635-200 for unsatisfactory performance.  The applicant did indicate that he was submitting a statement in his own behalf.  The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

10.  In his statement, the applicant stated he did not believe the Chapter 13 procedures should be carried out.  He stated he had good work habits and a great deal of respect for each and every member of the U.S. Army.  He stated he could perform all of his duties in a military manner no matter what the duty calls for.  He stated his battery commander told him if he didn't bring his work habits up to standards he would recommend him for chapter procedures.  He didn't believe two weeks from the time he was counseled was enough time to determine whether or not he should be chaptered out.  He stated he wanted to continue to serve in the U.S. Army.

11.  On 24 January 1984, the applicant's commander recommended the applicant be eliminated from the U.S. Army under the provisions of Chapter 13 of Army Regulation 635-200 and recommended the characterization of his service be under honorable conditions.  The commander stated the applicant had failed to respond to counseling and NJP under the UCMJ and continues to function and perform in a very substandard manner.

12.  On 27 January 1984, the appropriate authority approved the applicant's discharge for unsatisfactory performance and directed the applicant receive a General Discharge Certificate.

13.  On 6 February 1984, the applicant was discharged by reason of unsatisfactory performance.  He had completed 2 years, 3 months, and 6 days of active service that was characterized as under honorable conditions.  

14.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB'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, provided for separation due to unsatisfactory performance when in the commander’s judgment:

* the individual would not become a satisfactory Soldier
* retention would have an adverse impact on military discipline, good order, and morale
* the service member would be a disruptive influence in the future
* the basis for separation would continue or recur
* the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely

Service of Soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions.

16.  Army Regulation 635-200 states 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 his general discharge should be upgraded to an honorable discharge.  

2.  According the applicant's commander the applicant failed to respond to counseling and NJP under the UCMJ and continued to function and perform in a very substandard manner.

3.  The evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  A review of the applicant's record of service shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or significant achievement.  

5.  In view of the above, there is insufficient basis to upgrade the applicant's 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)                                         AR20100007175





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ABCMR Record of Proceedings (cont)                                         AR20100007175



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